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EEOC Updates Guidance on Vaccine Mandates and Employers' Other COVID-19 Questions

    Client Alerts
  • October 21, 2021

Last week, the Equal Employment Opportunity Commission issued updates to its questions and answers guidance on the interplay between employer COVID-19 policies and federal anti-discrimination laws. While the revised guidance does not make major changes to the EEOC’s prior positions on these questions, it does provide insight into the agency’s evolving positions with regard to several discrimination issues, including vaccine mandates.

First, the guidance speculates that employer mandatory vaccination policies could be subject to legal claims that they have a disparate impact against protected groups that face barriers to obtaining COVID-19 vaccinations. The guidance does not state who these groups are or explain how they could face such barriers given that vaccines are free and widely available throughout the U.S.

Second, the guidance addresses situations where an employee seeks an exemption from a vaccination mandate due to pregnancy. In such situations, the EEOC says that employers should provide accommodations such as leave or telework that are made available to non-pregnant employees who face medical issues. This guidance does not address the fact that federal medical guidelines recommend COVID-19 vaccinations for most pregnant women.

Finally, the guidance states that when employers offer COVID-19 vaccinations themselves or through their agents, they may not provide incentives that are so large as to essentially coerce employees to disclose a medical condition during the pre-vaccination screening process. Employers can entirely avoid this issue by leaving the vaccinations up to an independent third party.

The guidance does not discuss the interaction between federal civil rights laws and mandatory vaccination requirements imposed on employees of federal contractors or through the upcoming Occupational Safety and Health Administration emergency temporary standard. As these requirements become more clear, the EEOC is likely to add additional advice for affected employers.