The U.S. Equal Employment Opportunity Commission (“EEOC”) recently updated and expanded its guidance regarding the COVID-19 pandemic and federal anti-discrimination laws, including the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act (“Title VII”). The guidance, initially issued in December of 2020, covers communicating with employees regarding their COVID-19 diagnosis or vaccination status, COVID-19 vaccine mandates, and responding to employee requests for reasonable accommodations to COVID-19 safety measures.

The updated guidance now covers offering incentives to employees to get vaccinated or to provide proof of vaccination status, among other issues. Specifically, the guidance provides:

• 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 the employer complies with the reasonable accommodation provisions of the ADA and Title VII and the employer ensures its vaccine requirement does not have a disparate impact on (or disproportionately exclude) employees based on their race, color, religion, sex, or national origin under Title VII.
• 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, 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 just like any other medical information.
• An employer may also offer an incentive to employees to become vaccinated, including for receiving the vaccination from the employer, if the incentives are not so large to be considered 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. The limitation that the incentive not be so large to be considered coercive does not apply if the employee receives the vaccine from a third party (and not the employer).
• Employers may also 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 links to specific resources employers can share with their employees.
• Finally, the guidance covers issues related to an employer inquiring about an employee’s family member’s vaccination status under the Genetic Information in Employment Act (“GINA”).

This updated guidance answers COVID-19 questions only from the perspective of the EEO laws. Employers will still be required to carefully consider all relevant factors, including other applicable federal, state and local laws, in setting their policies regarding COVID-19 vaccinations in the workplace.

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