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Workplace Planning: Updated Guidance on Federal Equal Employment Opportunity Laws Released


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New details available on understanding rights and responsibilities at work during the pandemic as well as developing COVID-19 vaccine policies.

6/4/2021 11:00

Businesses and employees now have access to updated and expanded technical assistance and guidance related to the COVID-19 pandemic and answers to questions related to federal equal employment opportunity (EEO) laws released by the U.S. Equal Employment Opportunity Commission (EEOC) May 28.

The EEOC also posted a new resource for job applicants and employees  explaining how federal employment discrimination laws protect workers during the pandemic. These publications are provided to help employees and employers understand their rights and responsibilities at work during the pandemic, according to a news release from the EEOC.

The expanded technical assistance and guidance provides new details about how the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act apply when an employer offers incentives for employees to provide documentation or other confirmation of vaccination when an employee gets a vaccine in the community or from the employer or its agent.

The guidance is a helpful tool for companies to use to evaluate their own plans and update written policies for their employees.

In March, Elizabeth Blanco and Rachel Morris, attorneys with Sessions, Israel & Shartle LLC, returned to the ACA Huddle for “COVID Mary Gets the Vaccine,” where they reviewed COVID-19 vaccination policies and what employers need to know, ACA International previously reported. They announced at that time that the EEOC and the Occupational Safety and Health Administration (OSHA) were expected to release the updated guidance.

Citing a recent study from the Society for Human Resource Management, Blanco said 60% of human resources professionals and U.S. employees surveyed will “probably or definitely” get the vaccine when it’s available to them, while about 28% said they would not get the vaccine, even if it meant losing their job.

The EEOC guidance provides employers and employees an overview of laws related to workplace protection and rules to help navigate responses to the COVID-19 vaccine.

For example, the EEOC outlines ADA restrictions on when and how much medical information an employer may obtain from any applicant or employee, including when an employee calls in sick.

Additional updates from the EEOC include:

  • Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations. Other laws not in EEOC’s jurisdiction may place additional restrictions on employers. From an EEO perspective, employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.
  • Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community, such as a pharmacy, personal health care provider or public clinic. If employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the ADA.
  • Employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.
  • Employers may provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination. The guidance highlights federal government resources available to those seeking more information about how to get vaccinated.

During the ACA Huddle, Blanco and Sessions reviewed whether companies could mandate the vaccine versus encouraging employees to get it and providing education about their options, as well as applicable laws such as the ADA.

Regardless of whether employees decide to get the vaccine, companies still need to consider plans for accommodating the needs of employees who cannot get it for religious or health reasons and the safety of all employees, according to their presentation. Make sure to consider your company’s location and state and government requirements and how many people you need to work in the office versus how many can continue to work from home. If employees say they cannot or choose not to get the vaccine or work in the office, ask for them to document the information in writing.

When it comes to informing employees about the COVID-19 vaccine, education and training about options are permitted, and OSHA also has updated information available now.

A recording of Sessions’ and Blanco’s discussion is available for members here.

This article is for general informational purposes only and is not legal advice and should not be construed as legal advice. The information in this article is descriptive only. Actual coverage is subject to the language of the policies as issued.

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