EEOC Updates Guidance Regarding Vaccines

Posted on June 2, 2021 by Kari Thurlow

The Equal Employment Opportunity Commission (EEOC) updated its COVID-19 guidance regarding employers and COVID-19 vaccines. The expanded guidance provides new information about how the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) apply when an employer offers incentives for employees to confirm vaccination when an employee gets a vaccine in the community or from the employer or its agent. The critical updates to the guidance are as follows:

Vaccines may be mandates, as long as reasonable accommodations are offered when necessary. Federal EEO laws do not prevent an employer from requiring all employees entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations. Other laws not in EEOC's jurisdiction may place additional restrictions on employers. Employers should keep in mind that certain employees may be more likely to be negatively impacted by a vaccination requirement since some individuals or demographic groups may face more significant barriers to receiving a COVID-19 vaccination than others.

As a best practice, an employer introducing a COVID-19 vaccination policy and requiring documentation or other confirmation of vaccination should notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis.

The EEOC did not comment on the legal implications regarding the emergency authorization of the vaccine given by the FDA. It states, "The EEOC has received many inquiries from employers and employees about the type of authorization granted by the U.S. Department of Health and Human Services (HHS) Food and Drug Administration (FDA) for the administration of three COVID-19 vaccines. These three vaccines were granted Emergency Use Authorizations (EUA) by the FDA. It is beyond the EEOC's jurisdiction to discuss the legal implications of EUA or the FDA approach. Individuals seeking more information about the legal implications of EUA or the FDA approach to vaccines can visit the FDA’s EUA page. The EEOC's jurisdiction is limited to the federal EEO laws as noted above."

We seek to clarify whether other laws may still interfere with mandating a vaccine granted EUA versus a vaccine that receives full authorization.

Vaccine incentives are allowable but cannot be coercive. Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other vaccination confirmation. Employers administering vaccines to their employees may give incentives to employees to be vaccinated, as long as the incentives are not coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.

Vaccine information must be kept confidential. According to the ADA, if employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential.

Employers can provide vaccine information. Employers may provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination.

This guidance answers COVID-19 questions only from the perspective of the EEO laws. Other federal, state, and local laws come into play regarding the COVID-19 pandemic for employers and employees.

The EEOC notes that this guidance was prepared before the updated CDC guidance for fully vaccinated individuals issued on May 13 and any supplements. The EEOC is considering any impact the CDC guidance may have on its guidance.

LeadingAge Minnesota will be updating our FAQ document prepared by Felhaber Larson on these issues in the coming days.