EEOC Updates Guidance on COVID-19 Vaccine Requirements After Sweeping Biden Order

What do employers need to know about establishing policies related to COVID-19 vaccinations? That question has amplified following the Biden administration’s early September announcement of a sweeping vaccine mandate. 

Intended to boost vaccination rates nationwide, the mandate would apply to all employers (including those in the private sector) with more than 100 workers. Affected employers would be required to implement a vaccine ultimatum for their employers: workers would either have to get vaccinated or submit to weekly tests for the virus. 

Biden’s plan also calls for employees working at hospitals and healthcare facilities to be fully vaccinated and implements vaccine mandates for all federal employees and any companies that contract with the federal government. According to the Associated Press, the president’s mandate would affect approximately 100 million Americans.

So far, those mandates haven’t gone into effect. The Biden Administration set a November 22 deadline for federal employees to comply with the vaccine requirements. The broader mandate for private enterprises has not gone into effect and has no firm deadline at this time. However, multiple major companies are already instituting their own deadlines to comply with the order. Companies such as 3M, Proctor & Gamble, and American Airlines were quick to implement vaccine requirements for their employees after Biden’s announcement, while others have indicated plans to reach compliance soon. IBM says that it is requiring all its U.S. workers to be fully vaccinated by December 8.

Employers thinking about getting ahead of the Biden mandate and requiring vaccines for their workers should review the latest guidance on the subject issued by the Equal Employment Opportunity Act (EEOC). On October 13, the EEOC updated a document initially published last year: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. The document outlines how vaccine requirements may impact other federal laws that companies must comply with, including the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA).

The first piece of EEOC guidance to know regarding the COVID-19 vaccine is that employers are legally permitted to mandate vaccinations for any employees who will be “physically entering the workplace.” However, employers with vaccine requirements must, under both Title VII and the ADA, “provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated against COVID-19.” 

Similar to employee background screening policies, employers who choose to require vaccines must make sure that those requirements don’t have disparate negative impacts on minority groups or protected classes—a critical consideration given that minority demographics are statistically more likely to face barriers to getting vaccinated.

As COVID-19 continues to linger as a threat in the United States and around the world, checking vaccination status may become a standard part of the employee background screening process. As they proceed through this adjustment, employers should ensure that they are applying vaccine requirements in accordance with all relevant EEOC guidance and ADA, GINA, and Title VII requirements. Reviewing the latest EEOC guidance to ensure compliance may help your organization avoid a lawsuit in the future.