Providing additional guidance to employers, the Equal Employment Opportunity Commission (EEOC) released updated and expanded COVID-19 pandemic-related technical assistance in the form of a new Q&A document.
The updates—which were prepared prior to the Centers for Disease Control and Prevention’s updated guidance for fully vaccinated individuals issued in May and do not specifically address that guidance—offered new information about the application of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) when an employer offers incentives for workers to get a COVID-19 vaccine.
Below is a summary of the highlights of the agency’s amended guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws.
- Are employers allowed to require employees to be vaccinated? The guidance made clear that federal equal employment opportunity (EEO) laws do not prevent an employer from requiring that all employees physically entering a workplace be vaccinated, as long as employers comply with the reasonable accommodation provisions of the ADA and Title VII, as well as other EEO considerations. The agency pointed out 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.
- What are some examples of reasonable accommodations or modifications that employers may have to provide to employees who do not get vaccinated (for reasons such as disability, religious beliefs or pregnancy)? For those employees who do not get vaccinated based on reasons protected by federal EEO laws, employers may need to provide a reasonable accommodation that does not pose an undue hardship. The agency suggested that an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from others, work a modified shift, be given the opportunity to telework or accept a reassignment.
- Can employers offer incentives to employees to obtain a vaccination? 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 (i.e., not the employer) such as a pharmacy, clinic or health care provider. If employers elect to obtain vaccination information from their workers, it must be kept confidential pursuant to the ADA.
- What happens if employers administer vaccines to their employees? As long as the incentives are not coercive, employers that are administering vaccines to their employees may offer incentives. The EEOC cautioned such employers that because employees are required to answer certain pre-vaccination disability-related screening questions, a “very large” incentive could make employees feel pressured to disclose their protected medical information.
- Can employers provide their workers with information about COVID-19 vaccines for an educational purpose? Yes, employers can offer employees and their family members information to raise awareness and educate them about the benefits of vaccination. The agency highlighted several government resources that might be helpful.
The agency noted that its guidance was based solely on federal EEO laws and that other federal, state and local laws come into play for employers, presenting the possibility of additional restrictions.
In addition to the updated guidance for employers, the EEOC released a new resource for job applicants and employees, explaining how federal employment discrimination laws protect workers during the pandemic. The two publications were issued after an April agency hearing that explored the impact of the COVID-19 pandemic on civil rights in the workplace.
To read the updated EEOC guidance, click here.
Why it matters: The updated technical assistance “addresses frequently asked questions concerning vaccinations in the employment context,” EEOC Chair Charlotte A. Burrows said in a statement. “The EEOC will continue to clarify and update our COVID-19 technical assistance to ensure that we are providing the public with clear, easy to understand and helpful information. We will continue to address the issues that were raised at the Commission’s recent hearing on the civil rights impact of COVID-19.”