Today, the U.S. Equal Employment Opportunity Commission (EEOC) substantially augmented its technical assistance questions and answers related to the COVID-19 pandemic, and the application of the Americans with Disabilities Act (ADA) and other federal equal employment opportunity laws. It also released a new document targeted at employees and job applicants that explains how federal anti-discrimination laws apply during the COVID-19 pandemic. A summary of both documents appears below.
The EEOC stated that “[t]he updated technical assistance released today addresses frequently asked questions concerning vaccinations in the employment context.” It provides a wealth of information for employers that are navigating the decision-making process of reopening operations and addresses a number of common questions regarding vaccines. Here are a few highlights:
- Employers may offer incentives to employees to voluntarily provide documentation or confirmation of vaccination status where the vaccine was administered by a third party, and not the employer. The EEOC placed no limits on the size or nature of such incentives.
- However, if employers themselves or their agents are providing the vaccine to employees and choose to offer incentives for vaccinations (rewards or penalties), those incentives should not be so substantial as to be This issue arises because vaccinations require employees to answer disability-related screening questions, so a “very large” incentive could make employees feel pressured to disclose protected medical information. The EEOC offered no guidance on when an incentive will be considered so large as to be coercive.
- The EEOC addressed an unsettled question from its earlier guidance – whether information about vaccination status is confidential medical information. The answer is yes. If employers choose to request vaccination information from their employees, they must store that information separately from employee personnel files, because documentation or confirmation of vaccination status is considered confidential medical information pursuant to the ADA. This raises further issues about whether employers can require employees to display in some manner whether or not they have been vaccinated without running afoul of this ADA confidentiality requirement.
- Employers may also provide employees with resources about available COVID-19 vaccines and raise awareness about the benefits of vaccination. The technical assistance includes a list of sources.
- The EEOC confirmed its earlier guidance that employers may require 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, Title VII, and other equal employment opportunity laws. The EEOC cautioned that employers should keep in mind that they “may need to respond to allegations” that a vaccine requirement has a disparate impact on, or disproportionately excludes, certain individuals or demographic groups who face greater barriers to receiving a COVID-19 vaccination than others.
- In this guidance, the EEOC also expanded its discussion of accommodation to include pregnant employees who may be entitled under Title VII to accommodation if the employer is making modifications or exceptions for other employees who are similar in their ability or inability to work.
The EEOC noted that some of its guidance did not necessarily address the latest updates from the CDC on May 13, 2021, with respect to fully vaccinated individuals, and that it will continue to assess the potential impact of the CDC guidance on the newly issued technical assistance. Finally, the EEOC highlighted that its analysis was limited to federal EEO laws, stating that “it is beyond the EEOC’s jurisdiction to discuss the legal implications of EUA or the FDA approach.” The EEOC instead refers individuals to the FDA’s EUA page for additional information.
Federal Laws Protect You Against Employment Discrimination During the COVID-19 Pandemic
This notification, aimed at employees, provides information about how federal employment discrimination laws can help workers who (i) are being harassed; (ii) are high risk and need extra protection from getting sick; (iii) are not being allowed to work; or (iv) need a modification of an employer’s COVID-19 safety requirements or equipment.