Without any fanfare or press release (sigh), the U.S. Equal Employment Opportunity Commission updated its list of frequently asked questions entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”
The update is limited to guidance on vaccinations. So, you’d think that it would be easy to tell what the EEOC updated.
Yeah, you’d think that.
Unfortunately, it’s not. So, I created a redlined version of the changes using the current version of the EEOC guidance (as of October 13, 2021) and the version that existed on October 12, 2021 (according to the Wayback Machine).
These changes caught my eye:
Relaxed confidentiality requirements? Probably not.
The EEOC’s position remains that the Americans with Disabilities Act requires that employers maintain the confidentiality of information about an employee’s COVID-19 vaccination medical information. However, the EEOC has stricken specific guidance noting that this ADA confidentiality requirement applies regardless of where the employee gets the vaccination. So, has the EEOC relaxed the confidentiality rules if an employee receives a COVID-19 vaccination from a third party (e.g., a pharmacy)? Nah. The EEOC has merely chosen to omit the clarifying examples. Not sure why, though.
You can still ask about vaccination status.
The EEOC confirms that “requesting documentation or other confirmation of vaccination by a third party in the community is not a disability-related inquiry under the ADA, and the ADA’s rules about making such inquiries do not apply.” Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) is not implicated either.
Continue to consider pregnancy accommodations.
The EEOC now acknowledges that the CDC recommends COVID-19 vaccinations for people or are pregnant, breastfeeding, trying to get pregnant now, or planning to become pregnant in the future. However, the EEOC reconfirms that some pregnant employees may seek job adjustments or request exemption from a COVID-19 vaccination requirement.
Still no caps on third-party vaccine incentives.
Neither the ADA nor GINA limit the incentives an employer may offer to encourage employees to voluntarily receive a COVID-19 vaccination if the health care provider administering a COVID-19 vaccine is not the employer or its agent. By contrast, if an employer offers an incentive to employees to voluntarily receive a vaccination administered by the employer or its agent, the value of the incentive may not be so substantial as to be coercive.
It’s not much of an update from the EEOC. Keep calm and carry on.