Written By ESR News Blog Editor Thomas Ahearn
On October 13, 20201, the U.S. Equal Employment Opportunity Commission (EEOC) updated and expanded its guidance titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” by adding more questions that may arise under the federal equal employment opportunity (EEO) laws regarding COVID-19 vaccinations to help employees and employers understand their rights and responsibilities.
The guidance for COVID-19 from the EEOC – which was last updated in May of 2021 – provides information about how the Americans with Disabilities Act (ADA), Genetic Information Nondiscrimination Act (GINA), and Title VII of the Civil Rights Act of 1964 may apply when employers require all employees who physically enter the workplace to be vaccinated against COVID-19. The new questions added to the updated guidance include:
- Under the ADA, Title VII, and other federal employment nondiscrimination laws, may an employer require all employees physically entering the workplace to be vaccinated against COVID-19?
- How can employers encourage employees and their family members to be vaccinated against COVID-19 without violating the EEO laws, especially the ADA and GINA?
- Is information about an employee’s COVID-19 vaccination confidential medical information under the ADA?
- Does the ADA prevent an employer from inquiring about or requesting documentation or other confirmation that an employee obtained a COVID-19 vaccination?
- Under Title VII, what should an employer do if an employee chooses not to receive a COVID-19 vaccination due to pregnancy?
- Is Title II of GINA implicated when an employer requires employees to provide documentation or other confirmation that they received a vaccination from a health care provider that is not affiliated with their employer (such as from the employee’s personal physician or other health care provider, a pharmacy, or a public health department)?
- Does the ADA limit the value of the incentive employers may offer to employees for voluntarily receiving a COVID-19 vaccination from a health care provider that is not affiliated with their employer (such as the employee’s personal physician or other health care provider, a pharmacy, or a public health department)?
- Under the ADA, are there limits on the value of the incentive employers may offer to employees for voluntarily receiving a COVID-19 vaccination administered by the employer or its agent?
- Does GINA limit the value of the incentive employers may offer employees if employees or their family members get a COVID-19 vaccination from a health care provider that is not affiliated with the employer (such as the employee’s personal physician or other health care provider, a pharmacy, or a public health department)?
On September 9, 2021, the EEOC recognized “Long COVID” may be a disability under the ADA and Section 501 of the Rehabilitation Act and agreed with the “Guidance on ‘Long COVID’ as a Disability Under the ADA, Section 504, and Section 1557” from the Department of Health and Human Services (HHS). EEOC technical assistance about COVID-19 and ADA “disability” in the employment context will be released in the coming weeks.
The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, transgender status, and sexual orientation), national origin, age (40 or older), disability, or genetic information. Most employers with at least 15 employees are covered by EEOC laws. To learn more about the EEOC, visit www.eeoc.gov.
Coronavirus (COVID-19) is a potentially deadly respiratory illness that spreads from person to person. As of October 18, 2021, there are more than 240 million global cases and more than 4.9 million global deaths, while the United States leads the world with more than 44 million cases and more than 724,000 deaths, according to research from the Center for Systems Science and Engineering (CSSE) at Johns Hopkins University (JHU).
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