EEOC Issues Updated Workplace Vaccination Guidance

On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) updated its guidance regarding employer vaccination policies. The updates, which appear in Section K of the EEOC’s FAQ on COVID-19 and workplace anti-discrimination laws, explain when and how employers may implement workplace vaccination policies like vaccination mandates and incentives. Below are a few highlights from the updated guidance:

• Vaccine mandates. The EEOC reiterated that employers may require employees returning to the workplace to be vaccinated, so long as the employer properly considers accommodations for employees who cannot be vaccinated due to a medical disability or sincerely held religious belief. See CAPLAW's Building Readiness resource for more information about accommodating employees' medical disabilities and religious beliefs.
   
• Proof of vaccination. An employer may ask employees for proof of vaccination. Requesting documentation or other confirmation of vaccination is not a disability-related inquiry under the Americans with Disabilities Act (ADA), and the ADA’s rules about such inquiries do not apply. The EEOC recognizes that there are many reasons an employee may not show documentation or other confirmation of vaccination in the community besides having a disability.
   
• Vaccination incentives for employees. Employers may offer vaccination incentives to employees who provide confirmation that they have been vaccinated. If a CAA or its agent administered the vaccine directly to an employee, the incentives offered must not be so substantial that the incentive is seen as coercive. This limit operates as a safeguard against employees feeling pressured into disclosing protected medical information to their employer, since employees would have to answer pre-vaccination, disability-related screening questions. However, if a third party with no relation to the CAA administered the vaccine, such as a pharmacy or mass vaccination site, this limit on vaccine incentives does not apply.
   

• Vaccination incentives for employees’ family members. Employers are prohibited from offering incentives to employees for getting their family members vaccinated by the employer or its agents. This is because asking pre-vaccination medical screening questions of an employee’s family would lead to the employer’s receipt of genetic information about the employee’s family medical history, which would violate the Genetic Information Nondiscrimination Act. Still, employers may choose to offer vaccinations to employees’ family members, so long as the employee is not offered an incentive for their family member’s acceptance of the offer.

The EEOC cautions employers to be mindful of state laws that may further restrict their ability to implement workplace vaccine policies. This could include state laws currently being debated that restrict businesses and other organizations from requiring “vaccine passports” showing an individual’s vaccination status. The EEOC also stresses that all information relating to employees’ vaccination status collected by the employer must be kept confidential and stored separately from employees’ general personnel files pursuant to the ADA.

Note that EEOC specifically recognized that its guidance was drafted prior to the CDC’s new guidance regarding fully vaccinated people. Consequently, the FAQ may be further updated as the EEOC considers whether the CDC’s guidance has an impact on its recommendations.

For more information on employee vaccination policies and other COVID-19 workplace safety policies, please refer to the EEOC’s FAQ, the CDC’s new guidance, and CAPLAW’s Building Readiness resource. Please also refer to this CAPLAW news brief for more information about issues such as vaccination accommodations for disabilities or religious beliefs, and vaccination pre-screening and follow-up questions. CAPLAW will continue to monitor changes in federal guidance as the pandemic continues to develop. 

This News Flash is part of the Community Services Block Grant (CSBG) Legal Training and Technical Assistance (T/TA) Center. It was created by Community Action Program Legal Services, Inc. (CAPLAW) in the performance of the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Community Services Cooperative Agreement – Grant Award Number 90ET0467-03-C3. Any opinion, findings, conclusions, or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the U.S. Department of Health and Human Services, Administration for Children and Families.

The contents of this news flash are intended to convey general information only and do not constitute legal advice. Any communication through this publication or through CAPLAW’s website does not constitute or create an attorney-client relationship. If you need legal advice, please contact CAPLAW or another attorney directly.