The U.S. Equal Employment Opportunity Commission (EEOC) on May 28, 2021, released an updated version of its guidance, prepared prior to the Centers for Disease Control & Prevention’s (CDC) guidance regarding fully vaccinated individuals (issued on May 13, 2021), before COVID-19 vaccinations were broadly available. The released update covers issues regarding mandatory vaccination policies, employer-provided vaccine incentives, confidentiality, and accommodating workers who may be unable or unwilling to obtain a vaccination for some reason.

Vaccine Mandates And Related Accommodations

Previously, EEOC had announced that employers may implement mandatory vaccine policies without violating the federal laws enforced by the EEOC, as long as reasonable accommodations are made for employees declining the vaccine due to a disability covered by the Americans with Disabilities Act (ADA), or a sincerely-held religious belief, practice or observance, covered by Title VII of the Civil Rights Act (Title VII).

Now the EEOC provides reasonable accommodations for employees who are unvaccinated due to a disability or a sincerely-held religious belief that would not pose an undue hardship on the operation of the employer’s business – wearing a face mask, working at a social distance from other employees on non-employees, working a modified shift, teleworking, periodic COVID-19 testing, and reassignment.

EEOC also stated that 

• Employees who are not vaccinated due to pregnancy may be entitled to similar modifications to continue working under Title VII.
• Employers should keep in mind that some employees may be more likely to be negatively impacted by a vaccination need because some individuals or demographic groups may face greater barriers to receiving COVID-19 vaccination than others. Thus, employers in such cases must think of instituting vaccine mandates, monitor the impact on protected groups, and be mindful of potential disparate impact claims.

Incentives

For Voluntary Employee Vaccinations

Employers can offer incentives to employees to voluntarily provide documentation or confirmation that they have been vaccinated. Where the employer is offering an incentive to employees for voluntarily receiving a vaccine administered by the employer or its agent, then the incentive cannot be so substantial as to be coercive.

Employee Family Member Vaccinations

Employers can offer incentives to employees to provide documentation or confirmation that their family members have been vaccinated by a third party other than the employer or employer’s agent without violating GINA. The EEOC specifies that documentation or other confirmation that the employee or a family member has been vaccinated is not an unlawful request for genetic information under GINA because it is not information about genetic information or the manifestation of a disease or disorder in the employee’s family member. However, an employer cannot offer an incentive to an employee in exchange for a family member’s receipt of vaccination from the employer or its agent, for this could potentially violate GINA.

Guidance On Eeoc Guidelines

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