With the widely available vaccinations across the country, the Equal Employment Opportunity Commission (EEOC) recently issued updated responses to employers' inquiries regarding the vaccination of employees. As a part of its responses, EEOC clarified the applicability of several federal laws on equal employment opportunity, such as the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), to employer policies dealing with vaccinations, vaccination incentives, and the confidentiality of employee documents. Some of the key takeaways from the FAQs are:
For employees who are unable to receive vaccines due to any disability or (sincerely held) religious reasons, employers must extend them reasonable accommodations so that the employee is able to continue being employed without posing any serious threat to other employees. Some of the measures that may be considered as a part of such reasonable accommodations include telework, change in work schedules, periodic COVID-19 tests, and reassignment to another position.
It is unlawful under Title VII for employers to discriminate against pregnant employees when compared to others who are similarly situated in their ability or inability to work. When applying their mandatory vaccination policy, employers must extend reasonable accommodations to pregnant employees, provided that such reasonable accommodations are also provided to employees unable to get vaccinated due to disability or seriously held religious reasons.
For employees entering the workplace, the employers may require all of them to be vaccinated. If the employers do so, as a part of their mandatory vaccination policy, they must ensure that they comply with provisions of the ADA, Title VII and other laws dealing with reasonable accommodations, to the extent applicable to employees who are unable to be vaccinated due to disability or sincerely held religious beliefs.
Given that some employees may have to face barriers to vaccination as a result of being in a minority class, employers must consider whether their mandatory vaccination policy negatively impacts such employees. Employers may have to respond to allegations that their non-discriminatory vaccination policy poses a disparate impact on a protected group of employees, including minorities.
Note that it is unlawful for employers to implement or apply their vaccination policy in a manner that results in different treatment of employees based on classifications such as color, race, religion, disability, sex, sexual orientation, gender identity, national origin, age, or genetic information.
Employers may consider offering incentives to their employees to encourage them (but not coerce them) to get vaccinated.
The FAQs also clarify the position regarding employers’ screening of vaccination. As per the EEOC, employers may ask the employees whether they have received vaccinations and require proof for the same. That said, employers may not ask further questions regarding the employee not getting vaccinated since the responses to those questions may involve information regarding disability or family medical history.
Any vaccine-related information of employees must be treated as confidential and should be stored securely and separate from other personnel files of the employees. Given the nature of such information, managers or supervisors should not ordinarily be told about an employee’s vaccination status.
While employers have some clarity on where things stand as vaccinations continue to be administered, we expect further clarifications and guidance from the EEOC on these issues. Please stay tuned for further updates.
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