Data Points: Privacy & Data Security Blog

The U.S. Equal Employment Opportunity Commission (EEOC) on May 28, 2021 issued updated guidance on vaccinations. The relevant excerpts are attached and the full EEOC guidance is here https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

In short:

• During the pandemic, employers can mandate that employees receive the COVID 19, subject to exceptions such as required accommodations for persons with disabilities (see K5);
• Employers can require employees to provide the employer documentation showing that they have been vaccinated (see K4);
• Such documentation is not a “disability related inquiry” under the Americans with Disabilities Act;
• Such documentation is a confidential medical record and must be kept confidential;
• Pregnant employees who decline to be vaccinated may be entitled to certain accommodations (such as telework or other job modifications) if the employer provides such accommodations to other employees with similar limitations as the pregnant employee (see K13);
• Employers can offer incentives to employees to get vaccinated (see starting with K14), but to avoid issues under the Genetic Information Nondiscrimination Act (GINA):
• The best practice still is to have the employee receive the vaccine from a third party (i.e., pharmacy, government vaccination site)  to avoid the employer collecting medical information from the pre-vaccination questionnaire;
• If the employer offers the vaccine itself or through an agent, the vaccine incentive should not be “so substantial as to be coercive,” because the pre-vaccine questionnaire requires disclosure of medical information;
• The guidance appears to allow a penalty to employees who refuse to get vaccinated and are not entitled to an exception to vaccination, as long as the penalty for refusing an employer provided vaccine is not so substantial as to be coercive;
• Employers can’t offer an incentive to the employee to have the employee’s family member to be vaccinated by the employer or its agent, because this would involve providing an incentive in exchange for the receipt of family medical information of the employee which is not permitted under GINA (see K20).

This is only guidance from the EEOC. It is not law. The guidance also does not preempt state or local law, nor does it address the issue of the FDA regulations requiring notice to individuals that use of a product authorized under an Emergency Use Authorization is voluntary. 

Feel free to reach out to anyone in the MVA Employment Group for questions.