Fedweek

The EEOC has updated and expanded its prior guidance on how the laws it enforces affect workplace considerations related to the pandemic, focusing on the growing issue of policies related to vaccinations against the Coronavirus.

The guidance adds to previous interpretations of what employers may or may not do or ask of employees under laws that affect the federal workplace along with many private sector workplaces, such as the Americans with Disabilities Act and civil rights laws. It also adds to the growing set of considerations regarding federal workplace policies—ranging from mask wearing to recalls from telework status—being weighed by the Biden administration as vaccination rates increase nationally.

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Regarding one where attention is growing—the potential for requiring vaccinations for people to work onsite–the EEOC said that those laws “do not prevent an employer from requiring 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 and other EEO considerations.”

It added though that laws outside the EEO realm “may place additional restrictions on employers” and that employers “should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.”

Other key elements of the new guidance include (in its words):

• Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community, such as a pharmacy, personal health care provider, or public clinic. If employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the ADA.

• Employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.

• Employers may provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination.

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