EEOC Updated Guidance on COVID-19 Vaccinations: Employer Policies, Obligations and Incentives

June 3, 2021

Author: Laura A. Stutz

On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) issued updates to its technical assistance guidance to clarify its position on mandatory COVID-19 vaccination policies from the perspective of the equal employment opportunity (EEO) laws. The guidance appears in question-and-answer format with updates to address workplace COVID-19 vaccination policies, employer accommodation obligations and employer-provided incentives. 

  • Mandatory Vaccination Policies. Federal EEO laws do not prevent employers from requiring all employees physically entering the workplace to be vaccinated for COVID-19. Mandatory workplace vaccinations policies are permissible so long as employers comply with the EEO laws by, among other things, providing accommodations for employees with firmly held religious beliefs and those with disabilities in accordance with the Americans with Disabilities Act (ADA) and ensuring no employees are treated differently based on protected characteristics in accordance with Title VII of the Civil Rights Act of 1964 (Title VII).

    Questions of unequal treatment could arise if employees who are unable to receive a vaccine for a legally protected reason are treated less favorably than other employees who are able to get the vaccine. A mandatory vaccination policy also could negatively impact certain individuals or demographic groups that face greater barriers to obtaining vaccinations. The EEOC warns that if employers or their agents administer vaccinations, the ADA’s restrictions on making disability-related inquiries apply to the required screening questions. Consequently, the screening questions must be “job related and consistent with business necessity.”
  • Requests for Accommodation. The EEOC advises that both fully vaccinated and unvaccinated employees may be entitled to reasonable accommodations under the ADA and Title VII. Employers should proceed as they would for any other request for an accommodation, i.e., engage in an individualized, flexible and cooperative interactive process to determine what accommodation, if any, may be available and appropriate under the circumstances.
  • ADA Confidentiality. The ADA requires that an employer keep all medical information about an employee confidential and store it separately from personnel files. The exchange or receipt of information relative to an employee’s vaccination status does not create an exception to this requirement. Employers who request or require confirmation of vaccination from employees must keep the information confidential and separate from the employee’s personnel file. 
  • Employer-Provided Incentives. The EEO laws, including the ADA and the Genetic Information Nondiscrimination Act (GINA), do not prohibit employer-provided incentives to encourage employees to disclose their vaccination status or to receive a COVID-19 vaccine. Incentives offered to employees in connection with a vaccination administered by the employer or its agents must not be so substantial as to be “coercive.” While employers may educate both employees and their families about vaccination to encourage them to get vaccinated, employers may not offer incentives to employees for their family members to receive a vaccine from the employer or its agent. Employers also may not require employees to have their family members vaccinated and must not penalize employees if their family members decide not to get vaccinated. Employers may offer to vaccinate family members only if the employer takes steps to ensure compliance with GINA. 

As noted, the updated EEOC guidance addresses COVID-19 vaccination questions only from the perspective of the EEO laws. There may be other federal, state and local laws that could impact the guidance provided by the EEOC. Employers should consult legal counsel regarding specific circumstances for individualized legal advice on COVID-19 vaccinations and related issues.

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