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EEOC Issues COVID-19 Vaccine Guidance

Stephanie Salmon

The Equal Employment Opportunity Commission (EEOC) has recently updated its guidance on the responsibilities and rights of employers and employees related to the COVID-19 vaccine, including in cases where employers require employees to be vaccinated.

The new guidance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” includes a section providing information to employers and employees about how a COVID-19 vaccination interacts with the legal requirements of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA).

In its December publication, the EEOC said:

  • Employers can require proof that employees have received a COVID-19 vaccine—with some exceptions.
  • COVID-19 vaccinations approved by the Food and Drug Administration do not constitute medical examinations under the Americans With Disabilities Act (ADA), EEOC said, but certain inquiries could implicate the ADA’s rules on disability-related inquiries. Employers requiring vaccination or proof of vaccination must show that such inquiries are job related and consistent with business necessity.
  • While federal law sometimes requires employers to grant policy exemptions as religious or disability accommodation, employers may be permitted to exclude from the workplace individuals unable to receive a COVID-19 vaccine under certain circumstances. 

If an employee is unable to receive a vaccine due to a disability, the employer should conduct an individualized assessment to determine whether a direct threat scenario exists. If a direct threat cannot be reduced to an acceptable level via reasonable accommodation, the employer may exclude the employee from physically entering the workplace, the agency said. Similarly, if an employee is unable to receive a vaccine due to a sincerely held religious practice or belief, and there is no reasonable accommodation possible, an employer may exclude the employee from the workplace lawfully.
Expect additional guidance in the months ahead about vaccinations and the workplace. AFS has a multitude of COVID-19 resources available on its website at www.afsinc.org.     

Treasury Department Labels Vietnam a Currency Manipulator

In December, the U.S. Department of Treasury labeled the governments of both Vietnam and Switzerland for the first time as currency manipulators and placed 10 others on its “watch list” in a report to Congress.  

The designation does not mean immediate sanctions for either government, but adds momentum to a separate investigation by the U.S. Trade Representative (USTR) into Vietnam’s currency practices that could result in tariffs on Vietnamese exports to the U.S.  

USTR held a virtual public hearing on December 29, 2020, in its ongoing investigation into Vietnam’s currency valuation.  USTR is specifically interested in: whether Vietnam’s currency is undervalued, and the level of the undervaluation; Vietnam’s acts, policies or practices that contribute to undervaluation of its currency; and the nature and level of burden or restriction on U.S. commerce caused by the undervaluation of Vietnam’s currency. After the hearing, the USTR will accept rebuttal comments until January 7, 2021.

Treasury also put the following 10 nations on its watch list: China, Japan, Korea, Germany, Italy, Singapore, Malaysia, Taiwan, Thailand, and India. China was previously labeled a currency manipulator in 2019, but the agency removed that designation in January when Chinese officials signed the phase one trade deal with the U.S. Whether theses manipulator tags will continue in the incoming Biden White House remains to be seen.     

OSHA Updates SST

OSHA announced in December that it is updating its Site-Specific Targeting (SST) directive, which directs agency resources to establishments with the highest rates of injuries and illness. The SST directive is one of the agency’s primary targeting programs for general industry establishments with 20 or more employees, including metalcasters. Under the program, OSHA selects establishments for inspection based on injury and illness data employers submitted on Form 300A for calendar years 2017-19.

The new directive replaces Site-Specific Targeting 2016, and includes the following changes:
A new target category for establishments reporting consistent injury and illness rates over the three-year data collection period.

It allows for records-only inspections when an inspector determines that incorrect data led to an establishment’s inclusion in the program. This will ensure OSHA conducts full inspections only when an employer truly has elevated incidents of injury and illness.

Along with the SST directive, OSHA also schedules programmed inspections based on its nine National Emphasis Programs and approximately 100 Regional and Local Emphasis Programs. These programmed inspections are in addition to unprogrammed inspections triggered by reports of fatalities, hospitalizations, certain serious injuries and employee complaints.