Written Testimony of Michael Eastman, Senior Vice President, Policy and Assistant General Counsel, Center for Workplace Compliance

April 28, 2021

Chair Burrows and Commissioners Samuels, Dhillon, Sonderling, and Lucas: on behalf of the Center for Workplace Compliance, thank you for the opportunity to participate in today’s public hearing on the civil rights implications of the COVID-19 pandemic. My name is Michael Eastman. I serve as senior vice president and assistant general counsel for the Center for Workplace Compliance (CWC).

Today’s hearing provides an opportunity for the Commission to hear a wide range of perspectives related to the impact of the pandemic on civil rights. I have been asked specifically to focus on the difficulties faced by employers in navigating employment issues raised by COVID-19 and future employment challenges the pandemic may present.

It goes without saying that the pandemic has dramatically impacted the workplace. Tens of thousands of employers have permanently closed, and countless others are struggling to survive. Millions of Americans are out of work and struggling to meet their needs and those of their families. The challenges employers face today as they seek to maintain operations and prepare for a new phase of the pandemic, or even a post-pandemic environment, are diverse and complex. The EEOC has a role to play in helping employers solve these problems, in particular by helping employers understand how the nation’s civil rights laws apply during these unusual times.

It is not possible to do justice to all of the pandemic-related challenges facing employers in one sitting, even while limiting the discussion to the challenges that touch on the laws that the EEOC enforces. Consequently, my testimony today is structured as the opening of a dialogue. Below, I offer several recommendations on behalf of CWC’s members for specific guidance that the EEOC can provide and introduce some issues for further discussion and deliberation over the weeks and months ahead. Specifically, CWC recommends that the EEOC:

• Revise its current guidance to clearly indicate that employers may establish mandatory vaccine policies for all or a portion of their in-person workforce, subject to the reasonable accommodation provisions of the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII);
• Consider adopting guidance explaining how a mandatory vaccine policy may have an unlawful disparate impact and how an employer may mitigate such risk;
• Provide guidance explaining how employers should assess vaccine requirements imposed by clients or customers while more clearly identifying when the laws that the EEOC enforces apply to non-employees who may be on an employer’s worksite;
• Adopt guidance under the ADA advising employers of the extent to which they may use vaccine incentives and ways in which employers may structure such incentives to minimize risk;
• Begin considering how changing public health orders may impact the EEOC’s current guidance and implementation of the laws that the agency enforces;
• Begin assessing how the use and proliferation of vaccine credentialing programs or systems could impact the laws that the EEOC enforces;
• Further highlight or supplement guidance regarding returning to in-person work to provide more context about when in-person work is an essential function of the job;
• Adopt guidance describing how employers should assess requests for stress and anxiety-related reasonable accommodations during the pandemic and implementation of return-to-work policies.

Statement of Interest

Founded in 1976, the Center for Workplace Compliance (CWC)[1] is the nation’s leading nonprofit association of major employers dedicated exclusively to helping its members better understand and manage their workplace compliance requirements and risks. CWC's membership includes approximately 200 large U.S. employers, collectively providing employment to millions of workers.

CWC’s directors and officers include many of industry’s leading experts in the fields of fair employment, workplace compliance, and risk management. Their combined experience gives CWC a unique depth of understanding of the practical and legal considerations associated with the interpretation and application of workplace rules and regulations.

As major employers, CWC members are subject to numerous compliance, recordkeeping, and reporting requirements imposed by federal laws prohibiting workplace discrimination, such as those established by Title VII of the Civil Rights Act of 1964 (Title VII), the Equal Pay Act, (EPA) the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA), and their implementing regulations. Most of CWC’s member employers are also federal contractors subject to the nondiscrimination and affirmative action obligations imposed by Executive Order 11246, the Rehabilitation Act of 1973, and the Vietnam-Era Veterans’ Readjustment Assistance Act.

The EEOC’s Current Guidance

For many years, the EEOC has maintained guidance related to the interaction between virus outbreaks and the laws the agency enforces.[2] In March 2020, the EEOC began updating this guidance in light of the COVID-19 pandemic. It also hosted a webinar answering questions that had arisen at the time.[3] CWC members appreciated the EEOC’s prompt guidance, which addressed many frequently asked questions (FAQs) we had then been receiving from our members.

Two of the EEOC’s guidance documents in particular are discussed in more detail below. The first, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,[4] was originally published in 2009, when the H1N1 flu virus was a major concern. This document, which I will refer to as the “Pandemic Preparedness Guidance,” was updated in response to the COVID-19 pandemic on March 21, 2020.

The second guidance is a series of technical assistance questions and answers entitled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.[5] This document, referred to as the “WYSK Guidance,” was first published on March 17, 2020, and since has been updated several times, most recently on December 16, 2020.

In general, the EEOC’s guidance has been helpful to employers as they address the challenges posed by the pandemic. However, as described below, we respectfully suggest that there are provisions within this existing guidance that should be revised or expanded upon to better help employers meet their compliance responsibilities.

Vaccine Mandates

Relatively few employers currently have a policy that broadly requires employees to receive a COVID-19 vaccine before returning to work in-person. However, this is a topic of significant discussion, and many employers are actively working to understand the benefits and risks that a vaccine mandate may have for all or, more commonly, some portion of their workforce.

Vaccine Mandates and the EEOC’s Guidance Under the ADA

The EEOC’s current guidance does not clearly address this issue. The WYSK Guidance includes four FAQs related to mandatory vaccinations.[6] Three of the FAQs imply, but do not expressly state, that employers are permitted to have a mandatory vaccination policy, provided that the policy appropriately addresses requests for reasonable accommodations related to disability or religious practices. However, in the FAQ designated K.4, the guidance confuses this position by quoting guidance from the U.S. Food and Drug Administration (FDA) suggesting vaccines administered under an Emergency Use Authorization (EUA) must be voluntary.

The Pandemic Preparedness Guidance does not resolve the question either. In addressing influenza vaccine, the Pandemic Preparedness Guidance states that employers covered by the ADA “should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.”[7]

The EEOC’s guidance would be more helpful if it clearly addressed the question of whether employers may lawfully implement and maintain a mandatory vaccination policy for all or a portion of their workforce, subject to the reasonable accommodation requirements of the ADA and Title VII. While it may be appropriate to reference the FDA’s EUA guidance, especially so stakeholders know where to go for more information, the reference to the FDA guidance should not distract from an explicit discussion of the lawfulness and risks of a mandatory vaccine program under the laws the EEOC enforces.

As an example, consider FAQs posted by the State of New Jersey. In response to a question about whether an employer can mandate a COVID-19 vaccine in order to enter the workplace, the FAQ provides:

Yes. An employer can require that an employee receive the COVID-19 vaccine in order to return to the workplace, unless the employee cannot get the vaccine because of a disability, because their doctor has advised them not to get the vaccine while pregnant or breastfeeding, or because of a sincerely held religious belief, practice, or observance.[8]

The EEOC should adopt a similarly clear statement.

Title VII Considerations

Of course, as with any employment policy, employers that adopt a vaccine mandate must consider whether the policy has a disparate impact on any group protected by Title VII or the ADEA. If such a policy has a disparate impact under Title VII, then an employer will need to demonstrate that the policy is job-related and consistent with business necessity. In addition, an employer could still lose a Title VII disparate impact claim if a plaintiff identified a practice with less impact that equally served the employer’s legitimate business needs.

Similarly, under the ADEA, a policy with a disparate impact against older workers may be justified if the policy is based on a reasonable factor other than age. Employers considering a vaccine mandate for all or some of their workforce need to be mindful of the potential for disparate impact and carefully consider alternatives that may mitigate such impact. The EEOC may wish to consider supplementing its guidance describing the disparate impact framework under Title VII and the ADEA and provide examples of how employers may evaluate and reduce the risk of a violation.

Vaccine Mandates and Third Parties

Employers are also considering the extent to which they can mandate that third parties who are present in their facilities receive a vaccination. For example, may an employer require its contractors to be vaccinated if they are working at the employer’s facility? In some cases, such as a joint employment scenario involving employees jointly employed by a staffing agency and another employer, it seems that the ADA, Title VII, and the other laws within the EEOC’s jurisdiction would fully apply. However, where there is no employment relationship, what responsibility does a business have to consider exceptions to the policy for reasonable accommodations?

Turning the question around, if an employer is hired to perform contract work at another business and that business mandates that all entering its facility prove that they have been vaccinated, without exception, how does the contractor ensure that it is not discriminating based on disability or religion? And, what are the employer’s obligations to prevent discrimination if one of its employees is denied work on a contracting job because the employee is not vaccinated? It may be that the contractor has other work for its employees who are not able to be vaccinated, but it may not. Or it may not have work that pays as well or offers the same benefits and opportunity for advancement. What can such an employer do to minimize risk of a Title VII or ADA violation?

The EEOC should develop guidance explaining how employers should assess vaccine requirements imposed by clients or customers and should consider revising its guidance to more expressly identify when the laws that the EEOC enforces apply to others who may be on an employer’s worksite.

Vaccine Incentives

While few employers have implemented mandatory vaccination policies, many employers are offering, or considering offering, incentives for employees to get vaccinated. The types of incentives under consideration vary significantly among employers.

Many of these programs do not involve financial incentives but instead focus on educating and informing employees about available vaccines and why it is important for employees to voluntarily vaccinate. However, other employers are offering incentives including payments of small bonuses, additional paid leave, and other perks in exchange for proof of vaccination.

The use of incentives in conjunction with a COVID-19 vaccine has raised significant questions among our members because the practice is reminiscent of the policy debate about the extent to which incentives may be used in conjunction with corporate wellness programs without violating the ADA or GINA. While the use of incentives in conjunction with wellness programs has proven to be contentious and hard to solve, the EEOC could provide more guidance relating to the use of incentives for COVID-19 vaccinations to help employers better understand their potential risks.

Section 102(d) of the ADA regulates medical examinations and inquiries. The use of incentives in conjunction with corporate wellness plans largely falls under Section 102(d)(4)(B), which addresses voluntary medical examinations. The key question for these programs is whether an incentive causes the medical examination to become involuntary.

However, this analysis will not be relevant for most employers offering vaccine incentives. As noted in the EEOC’s WYSK FAQs, a vaccine itself is not a medical examination, making analysis under Section 102(d) unnecessary. And while it certainly is true that the question is more complicated if an employer administers the vaccine in-house or through an agent because pre-screening vaccination questions may be medical inquiries, an employer could comply with the ADA by showing that the questions were job-related and consistent with business necessity under Section 102(d)(4)(A). Guidance on this specific issue would be very helpful to employers, particularly in the early stages of businesses reopening their workplaces to employees.

Finally, even if an employer proceeded with a vaccine administered in-house on a voluntary basis, thereby triggering Section 102(d)(4)(B) and the wellness provisions, there are significant steps that an employer can take to minimize the risk of violating the ADA, such as ensuring that any incentive offered is not more than de minimis and ensuring that an alternative means of earning the incentive exists for those unable to take the vaccine.

The EEOC has not adopted any guidance regarding the use of incentives to encourage employees to receive COVID-19 vaccinations. We understand that the EEOC may be reluctant to revisit the wellness issues in this context, but the EEOC could provide significant guidance to employers without doing so. We urge the EEOC to adopt such guidance, focusing on how employers could design such incentives to minimize risk.

COVID-19 Testing and Screening

The EEOC’s WYSK Guidance states that employers may ask employees if they are experiencing symptoms of COVID-19 and may take employees’ body temperatures.[9] Employers may also administer or require COVID-19 tests of employees before entering the workplace or on a periodic basis.[10]

This guidance provides clear and helpful advice for employers in the current environment. However, it is unclear how this guidance might change based on evolving standards from public health authorities. For example, the guidance states that employers should rely on the CDC and other public health authorities for guidance on symptoms for which employees may be screened,[11] and that employers may take employees’ body temperatures “[b]ecause the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions.”[12]

With millions of people now receiving COVID-19 vaccinations every week, it is reasonable to wonder whether local health agencies will modify their recommendations, and if so, how that may impact an employer’s ability to screen for symptoms of COVID-19 or test employees. For example, how are employers’ obligations impacted if health agencies take different positions with respect to such issues as community spread in their jurisdiction?

Without getting too “into the weeds” here, it is also worth noting that the two key provisions of the ADA referenced in this section of the WYSK guidance place a burden on employers. The first, governing medical examinations and inquiries, permits examinations and inquiries shown to be job-related and consistent with business necessity.[13] The second permits employers to maintain a “qualification standard” that an individual not pose a direct threat to the health or safety of other individuals in the workplace.[14] The guidance certainly implies that in the current environment, employers can meet these burdens based on guidance from public health authorities. But that again raises the question of how employer obligations will change over time.

If it has not already, we urge the Commission to begin considering how changing public health guidance may impact the Commission’s pandemic-related guidance and the practical impact that could have on employers and employees.

Vaccine Credentials and “Passports”

News reports regularly feature stories discussing the development of credentials, sometimes referred to as “passports,” that may be used to show that a person has been vaccinated or tested negative for COVID-19. For example, New York recently introduced the “Excelsior Pass” that allows individuals to store such credentials on their smart phone.[15] The Excelsior Pass may be used to expedite admittance to those venues and establishments that require proof of vaccination or a negative test before entry. Other vaccine or screening test credential systems are in development. Not surprisingly, the development and use of such credentials has already generated significant debate around privacy concerns, fraud, inequality, and discrimination. Some jurisdictions have taken steps to prohibit businesses from requiring vaccine credentials.[16]

The use of different types of credential systems to confirm vaccination status raises a number of questions from a civil rights perspective, beyond those associated with mandatory vaccination policies. For example, to what extent do such credentials account for those who are unable to be vaccinated for disability or religious reasons? Are the credentials easily available and accessible, or would they be harder to access for some people? Could their use have an adverse impact against a protected group, and how could such impact be mitigated?

Even if an employer does not maintain any particular vaccination policy, it will likely confront situations where its employees may be expected to use a vaccine credential for business-related purposes. For example, it seems likely such credentials will be required for at least some international travel. It is possible that domestic air travel or lodging facilities will require credentials. Particular establishments may also require such credentials. Employers will need to consider the extent to which these requirements limit opportunity for employees who do not have credentials.

The EEOC should begin assessing how the use and proliferation of vaccine credentialing programs or systems could impact the laws that the EEOC enforces.

Telecommuting and Working Remotely

For many employers, the most significant adjustment brought by the pandemic has been a rapid shift to telecommuting for a large segment of the workforce. Many employers have been functioning with a largely remote workforce now for more than a year. There are a variety of reasons why remote working challenges are different. By definition, when working from home there is much less of a boundary between work and home. Employees are more likely to be more casual at home, they are less likely to be performing their jobs in a separate office or work space, and they are more likely to have distractions. The significant shift to remote work has caused numerous compliance challenges. Several of these are relevant from the EEOC’s perspective.

With an increase in remote work, employers have new challenges as they seek to maintain a work environment free from harassment and other misconduct. Of course, harassment and other misconduct can happen remotely though videoconference, text, or chat. Employees sometimes cross the line by saying or doing something inappropriate when they mistakenly think their microphone is muted or camera is turned off. Sometimes, employees have inappropriate or offensive images or displays in their homes or simply on the background filter they choose to use.

Employers must also be sure that they are enforcing remote work policies in an appropriate manner. For example, employers must ensure that they are treating similarly situated workers the same when it comes to employer policies about videoconferencing, remote dress codes, and workplace flexibility.

Employers have also had to process different types of disability-related accommodation requests from employees, such as requests for ergonomic chairs and other equipment, adjustable desks that raise and lower, and software that may make it easier for employees to do their job.

While remote work has created these new challenges, it is my experience that many employers are well positioned to handle them, especially those that have more sophisticated human resources policies and departments. That being said, highlighting best practices, updating existing guidance with new examples, and identifying existing resources, such as the Job Accommodation Network in the case of disability-related accommodations,[17] may be helpful for many employers.

Returning to Work

It is clear that the pandemic accelerated acceptance of remote work, and that in a post-pandemic world there is likely to be more remote work than before. However, many employers have begun instituting or developing return to work plans with the expectation that most remote workers will return to full-time in-person status in the future. 

Working In-Person as an Essential Function of the Job

One question we receive quite frequently is the extent to which an employer can require that employees who have been working remotely during the past year must return to the office. In other words, under what circumstances can an employer deny an employee’s disability-related accommodation request to continue to work from home?

The EEOC’s WYSK guidance provides an answer to this question.[18] According to the guidance, if during the pandemic an employer has temporarily excused an essential function of a particular job, such as working in person, it is free to re-establish the essential function. If working in-person is not an essential function, then the request would need to be considered under the familiar reasonable accommodation process. Critical to the analysis is determining whether in-person work is an essential function of the job. While experience with remote working during the pandemic may cause employers to reconsider whether in-person work is required for some jobs, it is clear that for many employers it will remain an essential function in the future.

While the WYSK guidance addresses this question, given the frequency with which we receive questions similar to it, the EEOC should consider doing more to increase employer and employee awareness of this position, such as highlighting the guidance or further supplementing it with specific, real-world examples of its application.

Increased Requests for Stress and Anxiety-Related Accommodations

As employers begin implementing return-to-work plans, we have heard more reasonable accommodation requests related to anxiety or stress. Some people are simply less comfortable with returning to work in the current stage of the pandemic. Others would be comfortable at work but may not currently be comfortable with the transportation options they have. Some people have anxiety that is exacerbated by mask wearing, which may be required in the workplace or while commuting. The EEOC’s current COVID-19 guidance does not address pandemic-related anxiety or stress-related concerns.

Whether an employer must accommodate a reasonable accommodation request related to stress or anxiety is not necessarily a straightforward question. While an employer may choose to accommodate such requests, whether it is required to do so depends on whether the stress or anxiety is associated with a disability. The EEOC should adopt guidance describing how employers should assess requests for stress and anxiety-related reasonable accommodations in light of the pandemic and return-to-work policies.

Conclusion

Thank you for the opportunity to be here today to discuss some of the employment-related impacts of the COVID-19 pandemic. I look forward to your questions and our continued dialogue as the Commission considers whether to issue additional guidance interpreting the laws it enforces in light of the pandemic and the concerns raised by all of the witnesses at today’s hearing.

 

 

[1] Formerly the Equal Employment Advisory Council.

[2] For example, in 2009, the EEOC published guidance entitled ADA-Compliant Employer Preparedness for the H1N1 Flu Virus. That guidance has been updated in light of the COVID-19 pandemic and is available at https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act.

[3] A recording of the webinar and relevant guidance are posted on the EEOC’s website at https://www.eeoc.gov/coronavirus.

[4] Available at https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act.

[5] Available at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

[6] WYSK Qs K.4 – K.7.

[7] Pandemic Preparedness Guidance Q.13.

[8] Available at https://covid19.nj.gov/faqs/nj-information/reopening-guidance-and-restrictions/can-my-employer-require-me-to-get-the-covid-19-vaccine-in-order-to-enter-my-workplace (last accessed April 13, 2021).

[9] WYSK A.1 – A.3.

[10] WYSK A.6.

[11] WYSK A.2.

[12] WYSK A.3.

[13] 42 U.S.C. § 12112(d)(4)(A).

[14] 42 U.S.C. § 12113(b).

[15] See https://covid19vaccine.health.ny.gov/excelsior-pass.

[16] For example, Florida Governor Ron DeSantis recently signed Executive Order 21-81, which is available at https://www.flgov.com/wp-content/uploads/2021/04/EO-21-81.pdf.

[17] The Job Accommodation Network’s website is www.askjan.org.

[18] WYSK D.15.