Just before we headed off for the holiday weekend, the U.S. Equal Employment Opportunity Commission (“EEOC”) released updated guidance related to the COVID-19 vaccine. The guidance largely tracks earlier guidance and practices that many employers had already adopted. Here are the highlights:
- The EEOC explicitly confirmed that federal anti-discrimination laws “do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-1,” subject to the reasonable accommodation obligations that apply for religion and disability under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (“ADA”), respectively.
- The EEOC clarified that while asking employees to present proof that they are fully vaccinated is not a “medical examination” under the ADA, the information and documentation that employees provide is confidential medical information that must be stored separately from the employee’s personnel file and accessed only by those with a business need to know.
- The EEOC confirmed that employers may offer incentives to employees to encourage them to get vaccinated. If the employer itself provides the vaccine (as opposed to relying on third-party health care providers whom employees select on their own), the incentive may not be “so substantial as to be coercive.” The guidance does not define how “substantial” the incentive has to be to cross the line into prohibited coercion.
The guidance is available on the EEOC’s website (scroll down to “COVID-19 Vaccinations: EEO Overview”).