The US Equal Employment Opportunity Commission (EEOC) released a long-awaited update to its technical assistance guidance on COVID-19 and the Americans with Disabilities Act (ADA), the Rehabilitation Act, and other federal equal employment opportunity (EEO) laws on May 28, 2021. The document addresses frequent employer questions related to requiring vaccines for employees and providing incentives to employees to encourage vaccinations under the ADA, Title VII, and the Genetic Information Nondiscrimination Act (GINA).
The updated guidance provides the following:
The EEOC’s update should reassure and help guide employers seeking to mandate or encourage employee vaccination in accordance with federal EEO laws. The new guidance broadly permits employers to do the following:
The guidance also includes helpful clarifications regarding the treatment of vaccine information received by the employer and the applicability of the ADA and GINA’s medical and family history provisions to vaccine screening questions.
Certain aspects of the law in this area remain complex though. For example, the types of accommodations an employer can provide to persons with disabilities, those with sincerely held religious beliefs, and pregnant workers will vary depending on the facts and circumstances in individual workplaces. In addition, whether an incentive offered to encourage vaccination by an employer or its agent is “coercive” will require close examination.
Finally, just because mandatory vaccinations do not violate federal EEO laws does not mean that an employer can ignore state and local laws that might be inconsistent or more restrictive. For example, the EEOC guidance does not exempt employers from complying with the new Montana state law that prohibits mandatory vaccination of employees. We recommend that employers continue to reach out to counsel for assistance in these areas.