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EEOC Issues Updated Guidance on Employer-Mandated COVID-19 Vaccination Policies

Over the past several weeks one of the most relevant topics for employers is the potential implementation of employee Covid-19 vaccination programs. Creating a proper Covid-19 vaccination program involves compliance with various federal, state and local laws, including the Americans with Disabilities Act (“ADA”) and Title VII.

On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued updated guidance on employer-mandated Covid-19 vaccination policies as the first doses of the Covid-19 vaccine continue to be administered across the country. The new guidelines confirm that while the policies must comply with the ADA, Title VII, and the Genetic Information Nondiscrimination Act (“GINA”), employers are generally permitted to require their employees to be vaccinated once a vaccine becomes readily available, provided that such policies provide exceptions that meet the provisions of the aforementioned statutes.

As with other mandatory vaccination policies, the EEOC noted that employers who are notified of an employee’s inability to comply with an employer’s mandatory vaccination requirement due to a disability or a sincerely held religious belief must provide the employee with reasonable accommodations. In addition to requiring employers to make reasonable accommodations for employees who cannot comply with their policy, the EEOC clarified the following:

  • An employer’s administration of a Covid-19 vaccination is not considered a “medical examination” under the ADA;
  • An employer’s request for proof of vaccination is not considered a disability-related inquiry under the ADA;
  • Certain pre-screening questions could trigger the ADA’s general prohibition against disability-related inquiries and GINA’s prohibition against inquiries involving an employee’s genetic information (including an individual’s family medical history);
  • If reasonable accommodations cannot be made absent undue hardship, the employee may be excluded from coming to the workplace, but may not necessarily be terminated for noncompliance with the policy; and
  • If an employer requires proof of vaccination, the employer should provide a GINA-compliant warning stating that employees should not include any information regarding the employee’s genetic information upon submitting proof of vaccination to avoid liability if any genetic information is inadvertently shared.

In some instances mandatory vaccination programs are right for some employers; however, in others non-mandatory vaccination programs, including incentives to encourage employees to get vaccinated can be more practical.

We encourage any employer considering implementing a mandatory or voluntary Covid-19 vaccination policy to review the guidance set forth by the EEOC to ensure compliance with applicable laws. Please contact us if you would like assistance in implementing practical solutions to ensure such compliance.