The Equal Employment Opportunity Commission (EEOC) has updated its ongoing COVID-19 guidance to address questions related to the administration of COVID-19 vaccinations for employees. Specifically, EEOC updated Section K of its guidance to discuss employer obligations under the Americans with Disabilities Act (ADA), Title VII, and other equal employment opportunity laws.

According to the updated guidance, employers can impose mandatory COVID-19 vaccination requirements and can offer incentives to receive such vaccinations in certain circumstances. The most notable updates are detailed below.

Employers Can Mandate COVID-19 Vaccinations

Employers can require all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA.

Reasonable Accommodations and Disability-Related Inquiries Under the ADA

An employer may require an individual with a disability to receive a COVID-19 vaccination pursuant to a safety standard that is job-related and consistent with business necessity. If a particular employee cannot get vaccinated because of a disability, the employer cannot mandate compliance unless the employer can demonstrate that the individual would pose a “direct threat” to the health or safety of the employee or others in the workplace. The determination that a particular employee poses a “direct threat” should be based on reasonable medical judgment that relies on the most current medical knowledge about COVID-19.

Though EEOC has confirmed that the COVID-19 vaccination is not a disability-related inquiry, pre-screening questions necessary for the COVID-19 vaccination may constitute a disability-related inquiry and thus must be “job related and consistent with business necessity.” This requirement only applies to employers who are offering employer-sponsored vaccination programs. Employers who offer a voluntary vaccination policy need not comply.

EEOC has also clarified that requesting proof of vaccination is not a disability-related inquiry under the ADA, though the employer must keep such vaccination information confidential.

Employers Can Offer Incentives for Vaccinations

Employers may provide incentives to employees to receive a COVID-19 vaccination and to provide proof of their vaccination. But if the vaccination is received through an employer-sponsored vaccination program, the incentives cannot be so substantial as to be coercive.

Furthermore, the Genetic Information Nondiscrimination Act (GINA) prohibits employers from offering employees incentives to have their family members become vaccinated in an employer-sponsored program because the pre-screening questions may constitute an unlawful request about an employee’s genetic history. Employers can, however, make an employer-sponsored vaccination program available to an employee’s family member(s) without offering an incentive so long as the employer takes steps to comply with GINA.

Employers Should Keep Other EEO Considerations in Mind

The new guidance reminds employers that there are other equal employment opportunity considerations to keep in mind, including whether a mandatory vaccination program would have a disparate impact on employees in a protected category and whether employees have equal access to vaccinations. The foregoing summarizes EEOC’s COVID-19 vaccination guidance as of the date of this publication. Employers should be mindful that these issues remain fluid and should make employment decisions based on the most up-to-date information.

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