EEOC Issues Updated COVID-19 Technical Assistance

EEOC Issues COVID-19 Assistance


Notice: September 9, 2021
The EEOC recognizes that “long COVID” may be a disability under the Americans with Disabilities Act (ADA) and Section 501 of the Rehabilitation Act in certain circumstances. The EEOC agrees with the analysis of “long COVID” by the Departments of Health and Human Services and Justice in their “Guidance on ‘Long COVID’ as a Disability Under the ADA, Section 504, and Section 1557.” EEOC technical assistance about COVID-19 and ADA “disability” in the employment context will be released in the coming weeks.

The Center for Disease Control (CDC) and the Equal Employment Opportunity Commission (EEOC) have issued this information related to vaccinations:

• Employers are permitted to require all employees to be vaccinated.

• Employers must be aware that certain individuals may opt to not be vaccinated, either for religious reasons or for medical reasons. Under the Americans with Disabilities Act (ADA) and Title VII, reasonable accommodations must be offered to these persons in lieu of requiring them to be vaccinated.

Reasonable Accommodations Approved by the EEOC include:

  • Face masks
  • Social distancing from co-workers
  • Working different shift hours
  • Telecommuting and working from home
  • Reassignment to a different role
  • Employers may not require vaccinations for such employees unless they can show that the unvaccinated employee poses a direct threat to the health and safety of the employee or others in the workplace.
  • A “direct threat” determination requires employers to make an individualized assessment. The update provides real-world factors for employers to consider in making such a determination:
  • The duration of the risk.
  • The nature and severity of the potential harm, in the likelihood that particular harm will occur.
  • The imminence of the potential harm; and the type of work environment. 
  • In assessing the type of work environment, employers may consider factors such as:

(1) whether the employee works alone or with others.

(2) whether the employee works inside or outside.

(3) the available ventilation.

(4) the frequency and duration of direct interaction the employee typically has with other employees and/or non-employees.

(5) the number of partially vaccinated individuals in the workplace.

(6) whether other employees are wearing masks or undergoing routine screening tests; and

(7) the space available for social distancing.

Employers must be able to address situations involving pregnant employees who are unvaccinated. These persons may be entitled to job modifications such are working from home, revised work schedules or assignments, or being assigned to remote locations within the facility.

  • Employers must be able to address situations involving fully vaccinated employees who are in high-risk categories (autoimmune compromised, disability, older workers). The ADA interactive process should be followed, and certification from the employee’s health care provider may be requested.
  • Employers may incentivize employees to get vaccines. The incentive must be voluntary and of a modest value. Incentives may not be offered for family members to also be vaccinated.
  • Employers may ask employees to provide documentation that they and their family members have been vaccinated.
  • Employee and family member vaccination status must be kept confidential.
  • The EEOC has confirmed that such information is not to be shared with co-workers, customers, or other interested outside parties. 
  • Information regarding employees’ vaccination status may be kept with other medical or personal information and should be kept separate from the employee’s regular personnel folder.

GINA And COVID-19 Vaccinations

Title II of GINA prohibits covered employers from using the genetic information of employees to make employment decisions. It also restricts employers from requesting, requiring, purchasing, or disclosing the genetic information of employees. Under Title II of GINA, genetic information includes information about the manifestation of disease or disorder in a family member (which is referred to as “family medical history”) and information from genetic tests of the individual employee or a family member, among other things.

For more information or to read the What you should know about ADA regarding vaccination guidelines,  see the updated Vaccine and Passport Map.

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