Key updates include the following:
- Federal EEO laws allow an employer to require all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions for the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations.
- Employers should keep in mind that other laws, not in the EEOC’s jurisdiction, may place additional restrictions on employers.
- Employers can offer incentives to employees who voluntarily provide documentation from a third-party confirming they have been vaccinated against COVID-19.
- 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 health and disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical/health information.
- The updated EEOC guidance indicates that employers must make “reasonable accommodations” for employees who don’t get vaccinated because of a disability, religious belief, or pregnancy.
- Employers may provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefit of vaccination.
Along with the EEOC updates, legal experts say federal laws do not block businesses from asking employees or customers about their vaccine status, despite social media posts claiming the Fourth Amendment protects individuals from being asked about vaccines. According to Lawrence Gostin, a law professor at Georgetown University who specializes in public health law, “The Fourth Amendment only applies to governmental searches and seizures and certainly not to businesses asking for proof of vaccination.”
For additional information about COVID-19 and the ADA, the Rehabilitation Act, and other EEO laws, go to https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws or please contact Linda Pappajohn, our Director of HR Consulting Services.