EEOC Issues Updated COVID-19 Technical Assistance

On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) issued updated COVID-19 technical assistance. Topics covered by "What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws" include the following:

  • An employer may choose to require all employees physically entering the workplace to be vaccinated for COVID-19, so long as the employer complies with the reasonable accommodation provisions of the ADA and Title VII. Employers should keep in mind that because some employees may face greater barriers to receiving a vaccination than others, those employees may be more likely to be negatively impacted by a vaccination requirement. Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability and whom to refer it to for full consideration.
    Although it is not a problem under ADA to require employees to be vaccinated (as long as the employer provides accommodation), it is still a problem for purposes of whistleblowing, retaliation, etc., given the U.S. Food & Drug Administration (FDA) restrictions on use of vaccines. Employers should consult an attorney before making a decision.
  • An employer may offer incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party. Such information is considered confidential medical information under the ADA, and employers must store it separately from the employee’s personnel files.
  • Employers that are administering vaccines to their employees may offer incentives for them to do so, as long as the incentives are not coercive.
  • Employers may provide employees with information to raise awareness about COVID-19 vaccines.

For more information, see the EEOC press release or the updated guidance.