EEOC Issues COVID-19 Vaccine Guidance

The United States Equal Employment Opportunity Commission (“EEOC”) has issued updated technical assistance for employers regarding COVID-19 vaccinations.  In the newly issued guidance, the EEOC declared its position that employers may require employees to become vaccinated against COVID-19 without violating federal discrimination laws, including the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Genetic Information Nondiscrimination Act (“GINA”).  In order to remain in compliance with EEO laws, employers must provide reasonable accommodations based on religious and/or disability status to employees who qualify for them.

The EEOC also addressed employer vaccine incentive programs, separating them into two categories based on who administers the vaccine.  If vaccines are administered by a third party and the employee is only required to bring vaccine documentation to receive an incentive, then there are no limitations on the cost or type of incentive that may be offered.  Conversely, if the employer administers the vaccine, incentives must not be costly enough to be considered “coercive” for employees.  Regardless of who administers the vaccine, employers should ensure medical information related to vaccines remains private and is not maintained in employee files.

Having said that, employers should be aware of the requirements of other federal, state, and local agencies who may enforce related laws and regulations.  Specifically, the United States Department of Labor’s Occupational Safety and Health Administration (OSHA) has issued guidance stating that employers are not required to record illnesses  or side effects related to the vaccine on their OSHA-300 forms under 29 CFR 1904’s recording requirements through May 2022.  Employers still may be responsible for providing paid leave related to vaccine-related side effects.*  Because OSHA-300 reporting may affect workers’ compensation insurance rates, employers should consider all financial implications before requiring employee vaccinations.  OSHA has not yet made a determination on how vaccine incentives affect recordability.

Despite its declaration regarding the applicability of EEO laws to vaccine mandates, the EEOC cautioned employers to consider disparities in vaccine distribution based on individual or demographic groups.  Current data suggests that members of certain communities may face additional obstacles in obtaining vaccines.  Accordingly, a policy or practice of requiring employees to be vaccinated may have a disparate impact on a particular group, which may result in a finding by the EEOC of systemic discrimination.  The fact that the EEOC has specifically mentioned this possibility should place employers on alert that investigations into disparate impact discrimination, also referred to as systemic discrimination, based on mandated vaccine policies may become a focal point in the EEOC’s agenda in the near future.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

*Updated July 2021 based on change in OSHA guidance.


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Tim represents management in all areas of labor and employment law.