In mid-December, the Equal Employment Opportunity Commission (EEOC) issued guidance specific to the COVID-19 vaccine. Part 1 highlights key takeaways from that guidance and Part 2 discusses information and resources currently available on New Jersey's vaccination plan. Part. 1 EEOC's Vaccination Guidance The EEOC's new guidance related to the COVID vaccine can be found in Section K of the EEOC's Technical Assistance Questions and Answers. You are encouraged to read Section K in its entirety as it provides valuable insight on several vaccination issues involving the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA). As you will see, the EEOC unequivocally approved an employer's right to mandate COVID vaccinations. However, the EEOC's guidance also highlights pitfalls with doing so - mainly the need to provide accommodations, exceptions, and the implications a mandatory program will have on the ADA's rules for disability related inquiries. It is also important to remember that a mandatory vaccination program will require collective bargaining prior to its implementation when union employees are involved. If you are looking to implement mandatory programs contact ECA (518-869-0961) to discuss prior to doing so. Here are key takeaways from the EEOC's Vaccination Guidance: • An employer can require vaccinations or proof of a vaccination, subject to exceptions discussed below. • Administering the vaccination is not a medical examination under the ADA, nor is requesting proof of a vaccination. • However, prescreening questioning will be subject to the ADA's rules for disability related inquiries and GINA's prohibition of inquiries soliciting genetic information. Under the ADA, the employer will have to show that the prescreening questioning was "job related and consistent with business necessity." However, the employer will not have to meet this standard if the vaccination program was: (1) voluntary, or (2) administered by a third party (who is not contracting with the employer to administer vaccines). Similarly, GINA will not apply if (1) the program is administered by a third party not contracted by the employer, or (2) the questioning does not solicit genetic information. • Exceptions must be made for employees who cannot receive the vaccine because of a (1) disability, or (2) sincerely held religious belief, practice or observance. • Employers may request supporting medical documentation when the disability and/or need for accommodation is not known or obvious. In the context of religious beliefs, the employer can ask for supporting information if an employer has an objective basis for questioning the sincerity of a belief, practice, or observance. The employer is not required to make an exception if the employer can show: 1. The unvaccinated employee will pose a "direct threat" due to a significant risk of substantial harm to the health or safety of the individual or others; AND 2. There is no "reasonable accommodation" that can be provided without experiencing "undue hardship" (significant difficulty or expense). The EEOC indicates that telework may be a reasonable accommodation for an unvaccinated employee depending on the circumstances. Further, the employer must engage in the interactive process to determine the availability and appropriateness of an accommodation before they prevent an employee from entering the workplace or terminating them.