By Jill Miller and Andy Hilger

With COVID-19 vaccines becoming increasingly available in most areas and the new CDC guidance with decreased restrictions for fully vaccinated adults, many employers are asking questions about the ability to mandate vaccinations for their employees. On May 28, 2021, the EEOC issued additional guidance clarifying its position and answering many of the lingering questions. The following provides a brief overview of the EEOC’s guidance.

The EEOC stated that federal laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to certain provisions of the ADA and Title VII which may, in certain circumstances, require employers to provide reasonable accommodations for disabilities or sincerely-held religious beliefs. An employee who has not been vaccinated for COVID-19 because of a disability may only be excluded from the workplace if they pose a “direct threat” to the health or safety of the employee or others in the workplace and providing a reasonable accommodation would pose an undue hardship on the employer. The EEOC advises employers to explore all the options before denying a request for an accommodation. The EEOC has also cautioned employers that some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination and some employees may be more likely to be negatively impacted by a vaccination requirement.

An employer may request documentation or confirmation of a COVID-19 vaccination; however, the ADA requires an employer to maintain the confidentiality of employee medical information, including their COVID-19 vaccination status. This information, like all medical information, must be stored separately from the employee’s personnel files under the ADA. Employers should be cautious not to ask follow-up questions about why an employee did or did not get vaccinated, as these questions could elicit disability-related information and would then be subject to the ADA’s requirement that questions be “job-related and consistent with business necessity.”

If an employer decides not to mandate the COVID-19 vaccine, the EEOC has also confirmed that an employer may provide certain incentives for the vaccine. However, incentives (including both rewards and penalties) offered to employees for voluntarily receiving a vaccination must not be so substantial as to be “coercive.” Below is a link to the full EEOC guidance.

What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

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