EEOC publishes updated guidelines on COVID vaccination guidelines
August 11, 2021
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As employers continue to adapt as guidelines at federal, state and local levels evolve, the Equal Opportunities Commission (EEOC) recently issued updated guidelines on vaccination guidelines in the workplace.
The EEOC’s updated guidance makes it clear that employers can lawfully require workers to obtain COVID-19 vaccination as a condition of physical return to work, provided they take reasonable precautions for workers who do not have COVID-19 vaccination can or want to receive vaccination for serious religious objections or for reasons of disability. The EEOC provides several examples of reasonable accommodation that may be offered to such employees, including face masks, social distancing, changed shift schedules, teleworking, and reassignment. Regardless, employers should be careful not to ask follow-up questions if an employee fails to provide evidence of vaccination, as such requests could violate ADA’s prohibitions on medical examinations unless the employer can demonstrate that these questions are job-related and related to the Business compatible are necessity.
The EEOC’s updated guidance also clarifies that employers can legitimately incentivize workers who voluntarily demonstrate that they and their family members have received COVID-19 vaccination. However, if the vaccination in question is given by the employer or his agent, the incentive offered must be limited and not “so significant as to be enforced”. In any event, the employer must not provide incentives for a worker’s family member to be vaccinated by the employer or his agent. However, if the vaccination is carried out by a third-party provider, such as the employee’s family doctor or a pharmacist, the employer is not limited to the incentive it can offer employees to provide evidence of receipt of a COVID-19 vaccination by employees and / or their family members.
In line with the guidelines of December 2020, the updated EEOC guideline also provides that an employer’s request for proof that an employee has received a COVID-19 vaccination is not a disability-related request within the meaning of the ADA. The EEOC makes it clear, however, that the documents or other vaccination certificates submitted by the employee are medical information that the employer must treat confidentially.
Employers are required to review and review reasonable accommodation requested by fully vaccinated workers who provide accommodation for underlying disabilities or conditions that may put them at increased risk of serious illness from COVID-19 infection. In addition, employees who apply for an exemption from the compulsory vaccination due to pregnancy can have the right to telework and to changes to work or work schedules, provided that these changes are made available to other employees with a similar incapacity for work.
In particular, the updated EEOC guidance reduces any discussion of the Emergency Authorization (“EUA”) of the COVID-19 vaccine. In its December 2020 guidance, the EEOC instructed employers to learn more about the EUA of COVID-19 vaccines and highlighted an FDA regulation that ensured vaccine recipients the option to accept or refuse an EUA vaccine. In its updated guidance, the EEOC only refers to EEA in the context of the statement that the prohibitions on soliciting or soliciting genetic information from workers under GINA do not apply when employers require workers to undergo COVID-19 vaccination (regardless of who is administering them). ) as the pre-vaccination screening questions for the three currently available EUA-COVID-19 vaccines do not include questions about genetic information.
The EEOC expressly advises that its updated guidelines do not take into account the CDC’s new guidelines of 13 May 2021 on fully vaccinated people. Therefore, the EEOC is likely to issue additional guidance in the coming months.
Dealing with the myriad of legal issues related to mandating or promoting COVID-19 vaccinations in the workplace is difficult for even the most discerning of employers, especially given the evolving guidance from authorities. If you have any questions about the mandatory or encouragement of COVID-19 vaccinations, please contact one of the authors or another member of the Lewis Rice Labor and Employment Group.
Originally published June 4, 2021
The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.
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