ABC is pleased the U.S. Equal Employment Opportunity Commission has issued long-awaited guidance on COVID-19 vaccinations as it relates to the workplace. On Feb. 1, ABC joined 41 trade associations in urging the EEOC to quickly issue guidance clarifying the extent to which employers may offer employees incentives to vaccinate without violating the Americans with Disabilities Act and other laws enforced by the EEOC.

According to the EEOC press release, “The expanded technical assistance provides new information about how the ADA and the Genetic Information Nondiscrimination Act apply when an employer offers incentives for employees to provide documentation or other confirmation of vaccination when an employee gets a vaccine in the community or from the employer or its agent. The technical assistance answers COVID-19 questions 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 key updates to the technical assistance are summarized below:

• 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.

Read all of the updates to the guidance (refer to Part K. Vaccinations).

Additionally, the EEOC posted a new resource for job applicants and employees, titled “Federal Laws Protect You Against Employment Discrimination During the COVID-19 Pandemic,” to help employees and employers understand their rights and responsibilities at work during the pandemic.

To learn more, read ABC counsel Littler Mendelson’s analysis, “Key Takeaways from the EEOC’s Updated Guidance Regarding COVID-19 Vaccinations, Incentives.”