July 15, 2021
EEOC Issues COVID-19 Guidance for Employers
Latest EEOC guidance aims to help employers and employees understand how federal employment discrimination laws apply to mandatory vaccinations … and the rights and responsibilities of employers and employees at work during the pandemic.
The U.S. Equal Employment Opportunity Commission (EEOC) on May 28th posted updated and expanded guidance related to the COVID-19 pandemic. It also provided 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 provide documentation or other confirmation of vaccination when employees get vaccinated in the community or by the employer or its agent. The EEOC stressed that its responses to COVID-19 questions are addressed 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 updated technical assistance released today addresses frequently asked questions concerning vaccinations in the employment context,” said EEOC Chair Charlotte A. Burrows. “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.”
The key updates to the “technical assistance” under the guidance are:
- Vaccinations may be compulsory. Federal EEO laws do not prevent an employer from requiring all employees physically 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. From an EEO perspective, employers should keep in mind 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.
- Incentives are allowed. 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 (not the employer) in the community, such as a pharmacy, personal health care provider, or public clinic. If employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the ADA.
- Incentives may not be coercive. Employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated, provided 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.
- Raising awareness of the benefits of vaccinations is permitted. 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. The technical assistance highlights federal government resources available to those seeking more information about how to get vaccinated.
The updates are further discussed in two new resources available online:
- What You Should Know about COVID-19 and the ADA Rehabilitation Act and other EEO Laws.
- Federal Laws Protect You Against Employment Discrimination During the COVID-19 Pandemic, which is intended for job applicants and employees, explains how federal employment discrimination laws protect workers during the pandemic.