EEOC Updates COVID Guidance on Vaccination

On December 16th, 2020, the Equal Employment Opportunity Commission (EEOC) announced additions to their COVID-19 technical assistance guidance. In short, it provides employers with crucial information on how to avoid possible workplace discrimination claims during the coronavirus pandemic. As a result of COVID-19 vaccines now being available, the EEOC wanted to address any questions that employers may have. So, the agency has included a specific section on vaccinations in this latest update.

Background of the Guidance

Provided in a “question and answer” format, the updated resource covers EEOC topics important to employers dealing with COVID-19 ramifications. Further, the subject matter discussed all falls under the EEOC’s enforcement of workplace anti-discrimination laws including the:

• Americans with Disabilities Act (ADA);
• Rehabilitation Act;
• Age Discrimination in Employment Act (ADEA); and
• Genetic Information Nondiscrimination Act (GINA).

In addition, the guidance also addresses COVID-19 compliance and Title VII of the Civil Rights Act (Title VII). Prior to the addition of any vaccination information, the guidance included the following topics:

• Disability-Related Inquiries and Medical Exams;
• Hiring and Onboarding;
• Reasonable Accommodations;
• Pandemic-Related Harassment; and
• Returning to Work

Overview of the Vaccination Guidance

The availability of COVID-19 vaccinations may raise questions about the applicability of various equal employment opportunity (EEO) laws. Importantly, the EEO laws, however, should not prevent employers from following other federal, state, and local public health guidelines. Therefore, employers should consider the following information included in the guidance, as well as other applicable rules.

• Firstly, employers have a duty to take efforts to maintain a safe work environment for employees, free from recognized hazards. That is to say hazards that are causing or are likely to cause death or serious physical harm. Because COVID-19 is a contagious virus with the potential to cause serious physical harm or death, it is a hazard. As such, employers could use vaccine mandates to restore workplaces to safety and health.
• Secondly, vaccine requirements must be carefully balanced with other federal civil rights laws. For instance, the EEOC guidance clarifies that employers mandating vaccinations need to provide reasonable accommodations to qualified individuals with disabilities. This, however, is not required if the accommodation would create an undue hardship under the ADA. Likewise, under Title VII, an employee with a sincerely held religious belief could require accommodation if that belief restricts vaccinations.

Additionally, the updated EEOC guidance addresses the following subjects:

• The correlation between vaccinations and medical examinations;
• Questions that may constitute a medical examination; and
• Proof of vaccination requirements.

Employer Takeaways

In conclusion, the EEOC wants to remind employers that all EEO laws are in full effect during the global pandemic. Therefore, employers need to remain vigilant in complying with all applicable EEO regulations. In addition to the new vaccination guidance, the EEOC adds new information about COVID-19 on a regular basis. Subsequently, to keep up to date on information involving workplace anti-discrimination laws and COVID-19, employers can visit the EEOC Newsroom. While many EEOC laws apply to employers with 15+ employees, many states have their own laws prohibiting job discrimination. To prevent possible fines or lawsuits, employers need to investigate which, if any, state-specific anti-discrimination laws they need to follow.