ARTICLE
25 February 2021

Required Reading: EEOC Guidance On COVID Vaccines

SS
Seyfarth Shaw LLP

Contributor

With more than 900 lawyers across 18 offices, Seyfarth Shaw LLP provides advisory, litigation, and transactional legal services to clients worldwide. Our high-caliber legal representation and advanced delivery capabilities allow us to take on our clients’ unique challenges and opportunities-no matter the scale or complexity. Whether navigating complex litigation, negotiating transformational deals, or advising on cross-border projects, our attorneys achieve exceptional legal outcomes. Our drive for excellence leads us to seek out better ways to work with our clients and each other. We have been first-to-market on many legal service delivery innovations-and we continue to break new ground with our clients every day. This long history of excellence and innovation has created a culture with a sense of purpose and belonging for all. In turn, our culture drives our commitment to the growth of our clients, the diversity of our people, and the resilience of our workforce.
In an effort to respond to the need of employers to have clear guidance on the extent to which they can mandate COVID-19 vaccines under the Americans With Disabilities Act and Title VII, the...
United States Employment and HR

In an effort to respond to the need of employers to have clear guidance on the extent to which they can mandate COVID-19 vaccines under the Americans With Disabilities Act and Title VII, the U.S. Equal Employment Opportunity Commission on Dec. 16 updated its guidance on vaccines by issuing "What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws."

The commission acted quickly in responding to the employer community, which had publicly challenged the EEOC to detail its guidance in the fast-changing COVID-19 world.

Essentially, the EEOC has said all employers can require mandatory vaccines as long as the employer: (i) allows employees to receive the vaccine from a third party that does not have a contract with the employer, and (ii) follows accommodation requirements under the ADA and Title VII.

The revised guidelines

The main legal restriction on requiring employees to be vaccinated comes from the ADA, which contains strict restrictions on an employer's ability to require employees to undergo a medical examination and make disability-related inquiries.

The EEOC stated in its revised guidance that a vaccine is not a medical examination and that asking employees about whether or not they have been vaccinated is not a disability-related inquiry. (On the latter point, at least one federal court has arguably held to the contrary, holding that inquiring about whether an employee is immune to a disease is a disability-related inquiry.)

However, the EEOC also stated that pre-screening questions asked by the employer, or a contractor administering the vaccine at the employer's request, "may" implicate the ADA's provision on disability-related inquiries as they are "likely" to elicit information about a disability.

Thus, if an employer administers the vaccine, or a contractor does so on its behalf, the employer must show that such pre-screening questions are job-related and consistent with business necessity.

Originally Published by New England In-House.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.

Learn More