EEOC Issues Updated COVID-19 Technical Assistance

EEOC Issues COVID-19 Assistance

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 a 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 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 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 Q&A Section regarding vaccination guidelines, visit https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

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