On May 28, 2021, the EEOC issued updated guidance for employers trying to navigate the COVID-19 world and how to reopen workplaces. The EEOC specifically provided guidance regarding COVID-19 vaccinations:
The key updates are summarized below:
- Requiring COVID-19 Vaccinations: Employers may require 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. 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.
- Reasonable Accommodations to a Vaccine Requirement: The EEOC provided the following examples of reasonable accommodations that may be offered to employees who do not get vaccinated due to a disability, covered by the ADA, or a sincerely held religious belief, covered by Title VII: wearing face masks, socially distancing, working modified shifts, testing periodically for COVID-19, working remotely, and/or reassignment.
- Incentives: Employers that decide to administer vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive. Employers may also offer incentives to employees to provide documentation from a third party, not acting on the employer’s behalf, such as a pharmacy, personal health care provider, or public clinic, that they have been vaccinated.
- Employee Vaccination Status: An employee’s vaccination status is considered medical information. Such information must remain confidential and must be stored separately from the employee’s personnel file.
- 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.
Full details regarding the guidance from the EEOC regarding COVID-19 vaccines can be found in Section K of “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”
The EEOC also posted a new resource for employees regarding discrimination in the workplace during COVID-19, which you may find here: https://www.eeoc.gov/federal-laws-protect-you-against-employment-discrimination-during-covid-19-pandemic
This guidance is subject to change as the COVID-19 pandemic continues to evolve. Therefore, employers and employees should continue to follow the most current information and guidance from the EEOC and other federal agencies.
We are always available to assist on these matters as the guidance continues to emerge and evolve.