Equal employment opportunity commission issues update on COVID-19 vaccination guidance

Global Publication June 4, 2021

In late May, the U.S. Equal Employment Opportunity Commission updated its guidance regarding COVID-19 vaccine requirements for employees. The key takeaways are:

  1. Under the Americans with Disabilities Act (ADA), Title VII, and other federal laws prohibiting employment discrimination, an employer may require all employees physically entering the workplace to be vaccinated for COVID-19. However, vaccination requirements are subject to anti-discrimination laws.
  2. If an employer requires vaccination for its employees, it must reasonably accommodate those employees with disabilities or sincerely held religious beliefs, practices, or observances. Reasonable accommodations may include wearing a mask, working at a social distance from co-workers, working modified shifts, periodic testing for COVID-19, telework, or reassignment.
  3. Employers are not required to provide these accommodations if it would pose an undue hardship on the operation of the business. The analysis for undue hardship depends on whether the accommodation is for a disability (including pregnancy-related conditions) or for religion. Title VII (which prohibits religious discrimination) defines "undue hardship" as having more than minimal cost or burden on the employer—an easier standard for employers to meet than under the ADA.
  4. If a vaccinated employee requests an accommodation for an underlying disability (including pregnancy) because she faces a heightened risk of severe illness from a COVID-19 infection, the employer must accommodate the request if it is reasonable and would not pose an undue hardship on the business.
  5. Information about an employee's COVID-19 vaccination is confidential medical information under the ADA. It must be maintained separately from the employee's personnel file.
  6. If an employer requires its employees to get a COVID-19 vaccination from the employer or its agent, the ADA's restrictions apply to the screening questions that must be asked immediately prior to administering the vaccine.
  7. An employer which requires its employees to provide proof of vaccination is not "using, acquiring, or disclosing genetic information under the Genetic Information Nondiscrimination Act (GINA); nor it is a disability related inquiry under the ADA.
  8. Under GINA and the ADA, an employer may offer an incentive to employees to provide documentation or other confirmation that they or their family members received a vaccination from their own health care provider.
  9. Under GINA and the ADA, an employer may offer an incentive to employees in exchange for the employee getting vaccinated by the employer or its agent.
  10. Under GINA, while an employer may offer an employee's family member an opportunity to be vaccinated, it may not offer the employee any incentive in return for that vaccination.


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