Shortly after the Food and Drug Administration’s Emergency Use Authorization for the Moderna and Pfizer/BioNTech COVID-19 vaccines, the Equal Employment Opportunity Commission issued guidance in a question and answer format concerning the implications of vaccination policies under the Americans With Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Genetic Information Nondiscrimination Act (“GINA”).

The EEOC’s original December 2020 guidance generally approved of permissive and mandatory vaccination programs on the grounds that a vaccination did not constitute a “medical examination” and that vaccinations may be necessary to eliminate a “direct threat” to employer workforces such that requiring a vaccine would be “job-related and consistent with business necessity.” The guidance offered further direction to employers concerning reasonable accommodation issues for vaccination refusals based upon disabilities or sincerely held religious beliefs, and outlined permissible and impermissible questions employers could pose to employees concerning vaccination.

On May 28, 2021, the EEOC issued further guidance addressing a host of other issues. First, the EEOC stated that federal EEO laws do not prevent an employer from requiring all employees who seek to enter the workplace to be vaccinated for COVID-19, subject to reasonable accommodation considerations under the ADA and Title VII. The EEOC advised employers, however, to notify all employees that it will consider requests for reasonable accommodations on an individualized basis.

Second, the EEOC offered examples of potential accommodations that may be necessary where an employee cannot be vaccinated due to a disability or a sincerely held religious belief. Among others, the EEOC noted that an unvaccinated employee may be required to wear a face mask, work at a social distance from others, work a modified shift, submit to periodic COVID-19 testing, work remotely, or accept reassignment.

Third, the EEOC approved of employer policies designed to encourage vaccination. The EEOC noted that employers may provide employees and their family members with information to educate them about COVID-19 vaccines, raise awareness of the benefits of vaccination, and address common questions and concerns. Further, the EEOC stated that employers may offer incentives to employees who receive COVID-19 vaccines. However, the EEOC cautioned that the incentive (whether a reward or penalty) cannot be so substantial as to be coercive.

Fourth, the EEOC confirmed that information about an employee’s vaccination is confidential medical information under the ADA. While employers may require employees to bring in documentation or proof of vaccination, this documentation must be treated confidentially, like all medical information, and stored separately from an employee’s personnel file.

Fifth, the EEOC noted that reasonable accommodation obligations may continue to exist for a fully vaccinated employee where, for example, an employee is immunocompromised such that the vaccine does not offer the same measure of protection against COVID-19 as it may for other individuals.

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