On May 28, 2021, the Equal Employment Opportunity Commission (“EEOC”) posted updated and expanded technical assistance related to the COVID-19 pandemic. These updates revise guidance it had issued on December 16, 2020 and address vaccination-related questions arising under the federal Equal Employment Opportunity (“EEO”) laws, including the Americans with Disabilities Act (“ADA”), the Genetic Information Nondiscrimination Act (“GINA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”).

The expanded technical assistance provides new guidance about how the EEO laws apply to mandatory vaccination policies, vaccination incentive programs, and confidential employee documentation. Key updates to the technical assistance are summarized below:

Mandatory Vaccination Policies

• 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 and Title VII of the Civil Rights Act of 1964.
  • An employee who does not get vaccinated due to a disability (covered by the ADA) or a sincerely held religious belief, practice, or observance (covered by Title VII) may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business.
  • An employee who does not get vaccinated due to pregnancy (covered by Title VII) may be entitled to adjustments to keep working if the employer makes modifications or exceptions for other employees.
  • The EEOC’s updated technical assistance was prepared prior to the CDC’s updated guidance for fully-vaccinated individuals issued on May 13, 2021. Accordingly, the EEOC is still considering any impact that the CDC’s guidance regarding masks and social distancing for fully-vaccinated individuals may have on its technical assistance.

• Employers considering a mandatory vaccine policy should ensure that it does not have a disparate impact on employees based on any protected classes such as disability, race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, or age.
  • Some individuals or groups may face greater barriers to receiving a COVID-19 vaccination than others, and therefore employers should be aware that some employees may be more likely to be negatively impacted by a vaccination requirement.

Vaccine Incentive Programs

• Employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not so substantial as to be coercive.
• Employers may also offer incentives for employees to voluntarily provide documentation or other confirmation that the employee has been vaccinated by a third-party provider.

Confidentiality

• If employers choose to require COVID-19 vaccination information from their employees, employers must keep such information confidential and store such information separately from the employee’s personnel files pursuant to the ADA. This confidentiality requirement applies regardless of whether the employee received the vaccination from their employer or from a third party.

Employers should consult counsel before implementing any vaccination policies or collecting any medical information that may implicate EEO laws.

* * *

Seward & Kissel has established a COVID-19 Resource Center on our web site to access all relevant alerts that we distribute.

If you have any questions regarding equal employment laws or COVID-19 guidance, please contact Anne C. Patin at (212) 574-1516, Julia C. Spivack at (212) 574-1373 or your relationship partner at the Firm.