EEOC Releases New Guidance on Impact of COVID-19 Vaccinations

Mara B. Levin, Anthony A. Mingione, and Jacob W.E. Kearney






The U.S. Equal Employment Opportunity Commission (“EEOC”) released updated guidance on December 16, 2020, to address the impact of COVID-19 vaccinations in the workplace. The guidance indicates that employers may require COVID-19 vaccinations for workers to be able to return to the workplace as long as employers comply with Title VII of the Civil Rights Act (“Title VII”), the Americans with Disabilities Act (“ADA”), and Title II of the Genetic Information Nondiscrimination Act (“GINA”).

Here are a few highlights:

      • Administration of the vaccine by the employer (or a contractor on the employer’s behalf) is not a medical examination and does not implicate the ADA, GINA, or Title VII. Employers must ensure, however, that all vaccine pre-screening questions are “job-related and consistent with business necessity” and do not request genetic information.
      • Asking or requiring employees to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry under the ADA because it is not likely to reveal information about any disability, nor does it impact GINA. Subsequent questions, such as “why did an employee not receive the vaccine,” would implicate concerns under the ADA and GINA, however. Employers must therefore also ensure that follow-up questions are “job-related and consistent with business necessity” and avoid asking questions about genetic information or family medical history.
      • Employers must provide reasonable accommodations, subject to “undue hardship” analysis, to workers who are unable to get the vaccine because of a disability (under the ADA) or sincerely held religious beliefs (under Title VII).
      • An employer may physically preclude an employee who cannot be vaccinated from entering the workplace when that employee poses a “direct threat to the health or safety of individuals in the workplace,” which threat cannot be eliminated by a reasonable accommodation. However, an employer may not automatically terminate the employment of that worker. Employers must consider what protections the employee may have under relevant EEO laws or other federal, state, and local authorities.

We encourage employers working on their return-to-work strategies to review the EEOC guidance as they consider how and whether to implement COVID-19 vaccination requirements. If you have any questions or need guidance specific to your workplace, please do not hesitate to contact Blank Rome for more information.

Finally! U.S. Supreme Court to Weigh in on Title VII LGBTQ+ Protection

Jason E. Reisman and Mark Blondman

Just this morning, the U.S. Supreme Court finally agreed to hear three cases from the circuit courts that split on whether Title VII of the Civil Rights Act of 1964 protects against discrimination in the workplace based on sexual orientation and gender identity. The basic question boils down to whether the word “sex” includes a protection for LGBTQ+ employees.

EEOC Initiative/Trigger. Though there have been efforts over the last 50+ years to seek such protection under Title VII, the true impact came from the Equal Employment Opportunity Commission’s (“EEOC”) push beginning in 2012, when it issued an administrative ruling holding that gender identity discrimination constitutes sex bias and therefore is protected. As everyone probably knows, in Hively v. Ivy Tech Community College, the U.S. Court of Appeals for the Seventh Circuit jumped into the fray with both feet in 2017, finding that Title VII’s “sex” does indeed include sexual orientation. In fact, before the full Seventh Circuit heard that case, a three-judge panel on that court had stated that it was a “paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act”—a reference to same sex marriage being legal. Continue reading “Finally! U.S. Supreme Court to Weigh in on Title VII LGBTQ+ Protection”

LGBT Protection under Title VII? “No,” Says Fifth Circuit Judge

Alix L. Udelson

Some 40 years ago, in Blum v. Gulf Oil Corp. (1979), the Fifth Circuit pronounced that Title VII of the Civil Rights Act of 1964 does not prohibit sexual orientation discrimination. Despite the immense shift in the cultural and legal zeitgeists since then, including decisions from several federal appellate courts holding the exact opposite, the Fifth Circuit seized the opportunity in its recent decision in Wittmer v. Phillips 66 Company to reiterate—albeit in dicta—that the Blum decision remains the law of that Circuit, which covers Louisiana, Mississippi, and Texas.

Nicole Wittmer, a transgender female, received a conditional offer of employment from Phillips 66. But Phillips 66 rescinded the offer when Wittmer’s background check revealed that she had been less than candid about her employment history during her job interview.

Wittmer then filed suit against Phillips 66 alleging transgender discrimination under Title VII. Continue reading “LGBT Protection under Title VII? “No,” Says Fifth Circuit Judge”