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EEOC Updates Its COVID-19 Technical Assistance Publication to Address Vaccinations

EEOC Technical Assistance

For several months, the Equal Employment Opportunity Commission (EEOC) has maintained a technical assistance publication examining key questions that arise under federal equal opportunity laws as they relate to COVID-19. The publication, entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” has been updated throughout the pandemic responding to developing issues that impact the workplace. With the very recent availability of a COVID-19 vaccine, the EEOC has anticipated several new questions that employers will likely be faced within the coming days.

What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

On December 16, 2020, the EEOC made a timely update to this publication, explaining in the new Section “K” that:

“The availability of COVID-19 vaccinations may raise questions about the applicability of various equal employment opportunity (EEO) laws, including the ADA and the Rehabilitation Act, GINA, and Title VII, including the Pregnancy Discrimination Act…. The EEO laws do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions.”

That being said, those statutes can raise complex issues that employers must carefully analyze under the particular circumstances with which they are faced in their workplaces. The updated publication can be found here.

There are several questions and answers reviewed by the EEOC, and it will be important for employers to review the update in full and familiarize themselves with these issues. Some examples of these important questions are highlighted below.

EEOC Technical Assistance Questions and Answers

For example, the EEOC’s update discusses the question of whether the administration of a COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts to administer a vaccine) is a “medical examination” for purposes of the ADA? In short, that answer is no because, as the EEOC explained:

“If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination. [However,] pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability. If the employer administers the vaccine, it must show that such pre-screening questions it asks employees are “job-related and consistent with business necessity.”

Regarding vaccination questions raised in the context of Title VII, this question was reviewed: If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief? The EEOC advises that:

“Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.”

And concerning the Genetic Information Nondiscrimination Act (GINA), one question examined by the EEOC was whether Title II of GINA was implicated when an employer administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received a COVID-19 vaccination? The EEOC’s answer to that inquiry is:

“No. Administering a COVID-19 vaccination to employees or requiring employees to provide proof that they have received a COVID-19 vaccination does not implicate Title II of GINA because it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of ‘genetic information’ as defined by the statute.”

As noted above, employers are sure to be faced with many of the issues relating to the EEOC’s updated technical assistance, and, therefore, they would be well-served to review these important questions now and feel free to contact us as questions arise. If you have any questions about this post or any other related labor and employment matters, please feel free to contact me at For more information related to COVID-19, visit our Coronavirus Thought Leadership Connection.

The information contained in this post may not reflect the most current developments, as the subject matter is extremely fluid and constantly changing. Please continue to monitor this site for ongoing developments. Readers are also cautioned against taking any action based on information contained herein without first seeking advice from professional legal counsel.