On December 16, the EEOC released new technical assistance about the EEO legal standards that govern employer vaccination programs for COVID-19. These questions and answers can be found in new Section K, Vaccinations, of the existing What You Should Know About COVID-19, the Americans with Disabilities Act, Rehabilitation Act, and Other EEO Laws. See www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
Section K sets out the legal principles that apply under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and other workplace laws to employer vaccination programs, both mandatory and voluntary, but Section K does not discuss whether or not a particular vaccination policy would meet the standards in a specific workplace situation. Among other requirements, the ADA “direct threat” standard would need to be satisfied by employers seeking to administer vaccines to their own employees. ADA and Title VII reasonable accommodation requirements would apply to employers seeking to administer vaccines to their own employees, and to employers seeking outside certification that employees received a COVID-19 vaccination. Section K also addresses voluntary vaccination programs, and explains why GINA does not apply to vaccines with messenger RNA (mRNA).
The most frequent question received so far is whether employers can require employees to get vaccinated for COVID-19. As noted, there is no one-size-fits-all answer. Section K explains the many legal considerations that employers must take into account when developing vaccination policies, including what legal requirements an employer should be aware of if it is considering requiring a COVID-19 vaccination. Any employer vaccination policy or program must comply with the ADA, Title VII, and other workplace laws.
Finally, Section K states that employers with questions about the effect of Emergency Use Authorizations (EUA) for COVID-19 vaccines should contact Food and Drug Administration (FDA). EUAs for COVID-19 vaccines fall within the domain of the FDA.