On May 28, 2021 the U.S. Equal Employment Opportunity Commission updated its What You Should Know about COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. The EEOC also issued a new resource titled Federal Laws Protect You Against Employment Discrimination During the COVID-19 Pandemic which “explain[s] how federal employment discrimination laws protect workers during the pandemic.” These two publications were prepared before the CDC updated its guidance for fully vaccinated individuals on May 13, 2021 and “do not specifically address that new guidance.” As set forth by the EEOC in its press release, “the key updates to the technical assistance” are:
- “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.
- 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.
- Employers that are administering vaccines to their employees may offer incentives for 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.
- 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.”
If your Company has questions about their COVID-19 policies given the EEOC’s recent updates, please contact experienced counsel.