New EEOC COVID-19 Vaccine Guidance for Employers
On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) expanded its “Technical Assistance Questions and Answers” related to COVID-19 and the Americans with Disabilities Act (ADA) and other federal EEO laws. The expanded guidance addresses the interplay between federal EEO laws and COVID-19 vaccination requirements, encouragement, incentives, accommodations, and documentation in the workplace. The EEOC’s press release on the topic can be found here.
Some key takeaways:
· Federal EEO laws do not prevent employers from maintaining a mandatory COVID-19 vaccination policy for employees who are physically entering the workplace, provided that employers do the following:
o Ensure that such policy is job-related and consistent with business necessity;
o Comply with the reasonable accommodation requirements of the ADA;
o Comply with the reasonable accommodation requirements of Title VII (including for an employee’s pregnancy or sincerely-held religious belief);
o Evaluate whether such mandate will have a disparate impact on any protected class(es) (for example, some individuals or demographic groups may face greater barriers to receiving the vaccine than others); and
o Comply with other laws, not in the EEOC’s jurisdiction.
· Employers may offer incentives to its employees to receive the vaccine if:
o Employees receive the vaccination from a third-party (not the employer or the employer’s agent); or
o Employees receive the vaccination from the employer or the employer’s agent, so long as the incentives (including both rewards and penalties) are not so substantial as to be coercive.
o NOTE: Employers may not offer an incentive in return for an employee’s family member receiving the vaccination from the employer or the employer’s agent. This would be a violation of Title II of the Genetic Information Nondiscrimination Act (GINA), because in asking family members pre-vaccination medical screening questions, employers are receiving employees’ genetic information - family medical history. GINA prohibits employers from providing incentives in exchange for receiving genetic information. Employers may not require that employees’ family members be vaccinated, and may not penalize employees if family members are not vaccinated.
· Employers may request proof of vaccination from employees, but must comply with ADA requirements to:
o Keep the vaccination information confidential; and
o Keep the vaccination information in a file separate from the employee’s personnel file.
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