EEOC Reissues Guidance for Employers on Covid-19 Vaccinations

By Douglas Lipsky

As we discussed in a recent blog post, the Equal Employment Opportunity Commission (EEOC) previously issued guidance for employers regarding Covid-19 vaccinations and federal anti-discrimination laws. 

In October, the EEOC updated its questions and answers for employers, but the agency has not changed its position on vaccine mandates. Moreover, the EEOC will likely issue additional guidance once the Occupational Safety and Health Administration finalizes its vaccination Emergency Temporary Standard. 

Some key points of the EEOC’s latest update include:

Employer Vaccination Mandates are Permissible

The EEOC has consistently taken the position that employers can require all employees physically entering the workplace to be vaccinated as long as exceptions are provided to employees who require accommodation due to disability, pregnancy, or religious belief. Employers should also provide the contact information of a management representative for employees who are requesting vaccine-related accommodations. 

The EEOC notes that vaccine mandates may have a disparate impact on groups of employees due to disproportionate access to vaccines, however, and encourages employers to find ways to address such disparities. Finally, time, employers are allowed to communicate with employees about the benefits of vaccination and provide information that can help with obtaining one. 

Reasonable Accommodations

Employers that are requiring their employees to get a Covid-19 vaccination must reasonably accommodate those who are unable or unwilling to do so because of a disability, including pregnancy, or sincerely held religious belief. 

If a pregnant employee seeks an exemption from a vaccination mandate, the employer must not discriminate against that employee when comparing accommodations offered to disabled employees. Examples of reasonable accommodations include:

  • Job  modification
  • Remote work
  • Reassignment
  • Leave

Requiring Proof of Vaccination

Employers are permitted to require employees to provide proof of vaccination, without violating the Americans with Disabilities Act (ADA) or Genetic Information Non-Discrimination Act (GINA). The EEOC notes that requesting confirmation of vaccination is not a disability-related inquiry and does not disclose genetic information. 

Why This Matters

The latest guidance reiterates the EEOC’s position that employers (1) can require employees to be vaccinated without violating federal equal employment laws and (2) must engage in an interactive process to assess an employee’s request for a reasonable disability, pregnancy, or religious accommodation. However, the agency also points out that Covid-19 vaccine mandates may conflict with local and state laws

As businesses in New York and New Jersey continue bringing employees back to the workplace, it is crucial for employers to consider the EEOC’s guidance and prepare for OSHA’s Emergency Temporary Standard. In any event, Covid-19 vaccine mandates are a divisive issue and disputes are inevitable. The best way for employers and employees to understand their rights and obligations is to consult with an experienced employment lawyer.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.