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EEOC Provides Guidance on COVID-19 Vaccinations

On December 11, 2020, the U.S. Food & Drug Administration authorized the emergency use of Pfizer-BioNTech’s COVID-19 vaccine for individuals 16 years of age and older. The vaccine was shipped out two days later to all fifty states. A Moderna vaccine was authorized on December 18, 2020. Inoculations have begun. But where does that leave employers? Can they mandate the vaccine for employees? Should they?

On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 guidance, titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” to include information regarding COVID-19 vaccination programs. The updated guidance is consistent with the agency’s historic approach to mandatory vaccine programs, including guidance issued during the H1N1 (“swine flu”) pandemic in 2009.

While the main takeaway is that the EEOC generally considers mandatory vaccination programs lawful, subject to exemptions for disabilities and sincerely held religious beliefs, there are a range of issues and potential pitfalls for employers to consider in developing a COVID-19 vaccination program to best serve their employees and constituents.

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