The Equal Employment
Opportunity Commission (“EEOC”) has released updated and expanded technical
assistance addressing frequently asked questions concerning COVID-19
vaccinations in the employment context, and what is permissible under federal
equal employment opportunity (“EEO”) laws, such as the Americans with Disabilities
Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”).
The key updates to the technical assistance are summarized below:
- Federal
EEO laws do not prevent an employer from requiring all employees
physically entering the workplace to be vaccinated for COVID-19, so long
as employers comply with the reasonable accommodation provisions of the
ADA and Title VII of the Civil Rights Act of 1964 and other EEO
considerations. Other laws, not in EEOC’s jurisdiction, may place
additional restrictions on employers. From an EEO perspective,
employers should keep in mind that because some individuals or demographic
groups may face greater barriers to receiving a COVID-19 vaccination than
others, some employees may be more likely to be negatively impacted by a
vaccination requirement.
- Federal
EEO laws do not prevent or limit employers from offering incentives to
employees to voluntarily provide documentation or other confirmation of
vaccination obtained from a third party (not the employer) in the
community, such as a pharmacy, personal health care provider, or public
clinic. If employers choose to obtain vaccination information from their
employees, employers must keep vaccination information confidential
pursuant to the ADA.
- Employers
that are administering vaccines to their employees may offer incentives
for employees to be vaccinated, as long as the incentives are not coercive.
Because vaccinations require employees to answer pre-vaccination
disability-related screening questions, a very large incentive could make
employees feel pressured to disclose protected medical information.
The EEOC has also posted a new resource for job applicants and employees, explaining how federal employment discrimination laws protect workers during the pandemic.
