EEOC Updates Advice to Employers on COVID-19 Vaccinations

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On May 28, the federal Equal Employment Opportunity Commission updated its COVID-19 “Technical Assistance Questions and Answers” for employers to provide additional guidance on vaccination policies. While the update does not contain any major departures from prior EEOC positions, it does address some questions recently raised by employers.

The Q&A reaffirms employer’s ability to require the COVID-19 vaccine as a condition of employment. Employees with objections to the vaccine based on disability or religious-related reasons are entitled to reasonable accommodation. The EEOC says that mandatory vaccination policies could have a disparate impact against protected groups unable to access the vaccines, but the guidance does not provide details or state that this is currently an agency concern. Employers not mandating vaccines may provide incentives to employees to obtain their shots and request documentation confirming their vaccination status.

In its previous guidance, the EEOC said that disability discrimination rules mean that employers may only provide nominal incentives to employees to obtain the vaccines, but it did not explain what this term means. The new guidance does not provide specifics but does say that “very large incentives” could act as a coercive measure. Gift cards under $100, paid time-off, and similar incentives should not meet this threshold.

The Q&A provides extensive guidance on how to accommodate employees who cannot get vaccinated because of a disability. The EEOC does not address whether employees with a disability who decline vaccinations for reasons unrelated to their medical condition are entitled to continuing accommodations such as remote work based on their concerns over contracting COVID-19 in the workplace.

The EEOC will likely continue to amend its guidance as more employees return to work and employers look to scale back COVID-19 safety measures.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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