EEOC answers questions about new COVID-19 vaccination guidance

It seems ages ago when we first received guidance from the Equal Employment Opportunity Commission (EEOC) on face coverings, temperature screenings, and COVID-19 testing in the workplace. On December 16, 2020, the agency issued new guidance for employers on coronavirus vaccinations. With widespread availability of the vaccines on the horizon, 2021 promises to be another interesting year in the employment world.

Questions and answers

May we mandate COVID-19 vaccinations? In short, probably. How's that for a lawyer's clear answer!

Federal agencies generally permit you to require employees to be vaccinated, and the EEOC's guidance suggests the same may be true for the COVID-19 vaccines. The agency didn't state explicitly that you can mandate the coronavirus vaccine for employees. Instead, it advised the administration of the vaccines to employees isn't considered a medical examination under the Americans with Disabilities Act (ADA) and that you may ask employees whether they've been vaccinated.

One reason for our hesitation to give a definitive answer is because the Pfizer vaccine has been approved by the Food and Drug Administration (FDA) under emergency use authorization, which raises the question of whether an employee may refuse the vaccine until final FDA approval is given (perhaps until the spring). We expect more guidance from the Occupational Safety and Health Administration (OSHA) and possibly the Centers for Disease Control and Prevention (CDC).

May we ask employees if they've been vaccinated? Yes. How's that for a one-word answer!