EEOC Steering on Mandating COVID-19 Vaccines

Can an employer prescribe or encourage a COVID-19 vaccination? If so, what are the exceptions or exclusions? As COVID-19 vaccines become increasingly available in the United States and the new Centers for Disease Control and Prevention (CDC) guidelines allow fully vaccinated individuals to forego certain safety precautions, employers have been addressing these issues.

The Americans with Disabilities Act (ADA), the Genetic Information Nondiskrimination Act (GINA), and Title VII of the Civil Rights Act place obligations on employers and give workers rights that overlap with the employer’s desire to obtain a COVID-19 vaccination or promote. The first guidelines of the Commission for Equal Opportunities (EEOC) on COVID-19 vaccinations, issued in December 2020, left many employer questions unresolved.


On May 28, 2021, the EEOC issued long-awaited additional guidance to answer these complicated questions and confirm the following:

  • Federal law allows vaccine mandates. Federal Equal Opportunities Laws do not prevent an employer from requiring a COVID-19 vaccination for all workers who physically enter the workplace, subject to the provisions of ADA and Title VII on reasonable accommodation.

  • Employers need to be aware of different effects. The EEOC warns employers who have a mandatory vaccination requirement to consider how such a requirement may differently affect certain workers based on characteristics protected under federal law, as some individuals or demographic groups may face greater barriers to getting a COVID 19 vaccine than others.

  • Employers can ask employees about their vaccination status and require proof, but this information is confidential. Employers can request written documentation and confirmation that an employee received the vaccine from a third party, but must ensure that this information is kept in the employee’s confidential medical record.

  • The EEOC provides examples of possible reasonable accommodation. Examples of “reasonable accommodation” for employees unable to comply with a vaccination request due to a disability; religious belief, practice, or compliance; or pregnancy imply that the unvaccinated worker:

    • Wear a face mask when you work

    • Work at a social distance from colleagues or non-employees

    • Work a modified shift

    • Get regular COVID-19 tests

    • Work through a provided teleworking agreement

    • Accept a reassignment

These are only examples and may not work or be appropriate in all cases. An interactive process is required to determine what precautions are appropriate and sufficient to mitigate a direct threat to the workplace.

  • Pregnant workers can be entitled to accommodation. Employees who are not vaccinated because of pregnancy can be entitled to a provision for continued employment if the employer makes changes in the workplace or exceptions for other people.

  • Employers can provide vaccination information. The EEOC encourages employers to educate their employees about how they and their families can be vaccinated, including transportation to vaccination centers.

  • Management training is promoted. As a best practice, an employer implementing a COVID-19 vaccination policy and requiring documentation or other confirmation of vaccination should train supervisors on reasonable precautions before the policy is implemented. All workers should also be advised that the employer will consider requests for reasonable accommodation based on disability on an individual basis. Manager training may include reminders to direct employees with accommodation requests to the appropriate HR professional.


The EEOC guide also addresses several issues related to mandatory vaccination. The guide confirms that mandatory vaccination programs are allowed as long as they meet the requirements of ADA and Title VII.

Especially for employers who have mandatory vaccination guidelines, the guide provides the following:

  • Employers must not request a vaccine for an employee whose disability prevents the worker from being vaccinated unless the employer can identify a “direct threat” (defined as “significant risk of significant harm” that is not eliminated or reduced through reasonable precautions can). . The guidelines highlight the employer’s obligation to make an individual assessment of the employee’s ability to perform the essential functions of the workplace.

  • When analyzing whether an employee poses a “direct threat”, the guidance directs an employer to consider the following:

    • The type of work environment, e.g. B. whether the employee works alone or with others and whether the employee works inside or outside

    • The ventilation available

  • The space available for social distancing.

  • If the “direct threat” assessment reveals that an employee with a disability who is not vaccinated would pose a direct threat to himself or others, the employer must consider whether reasonable accommodation without undue harshness will reduce or eliminate that threat would.

  • Employers must try to accommodate workers who cannot receive the COVID-19 vaccine because of a disability. The guidelines reiterate that workers do not need to use the specific term “reasonable accommodation” in their application to trigger an employer’s obligations under the ADA.


Employers who give their employees the COVID-19 vaccine (directly or through a contract with a third party) on a mandatory or voluntary basis have asked for advice on what pre-vaccination questions are allowed under the ADA. In general, the ADA restricts the circumstances in which employers can request medical examinations (procedures or tests that obtain information about a person’s physical or mental impairment or health status) or make disability-related inquiries (questions that are likely to provide information about a person’s disability Person deliver). . The EEOC guidelines distinguish between a mandatory employer-run vaccination program and a voluntary program.

For employers who require workers to receive COVID-19 vaccination from the employer or their representative, the EEOC confirms that the ADA’s restrictions apply to the screening questions that must be asked immediately prior to the administration of the vaccine if the Vaccine is administered by the employer or his agent. Because the pre-vaccination screening questions are likely to provide information about a disability, the ADA requires that they be “job-related and consistent with business needs” when an employer or their agent is administering the COVID-19 vaccine. To meet this standard, an employer would reasonably have to assume, based on objective evidence, that a worker who does not answer the questions and therefore cannot be vaccinated is a direct threat to the worker’s own health or safety, or to the health of the worker and the safety of others in the workplace. Therefore, if an employer requires workers to be vaccinated by the employer or his representative, the employer should be aware that an employee can contest the mandatory vaccination screening and that the employer must justify them under the ADA.

For employers who give a COVID-19 vaccine on a voluntary basis, the EEOC makes it clear that an employer can ask disability-related screening questions before administering the COVID-19 vaccine, without the standard “job-related and consistent with business needs “To have to meet.


The EEOC offers employers who offer voluntary vaccinations according to ADA and GINA additional guidance. The instructions confirm:

  • An employer can incentivize workers to provide information about their vaccination that they have received from a third party.

  • Under the ADA, an employer can offer employees an incentive to voluntarily provide one
    Vaccination by the employer or his agent, provided the incentive is voluntary and not so significant that it is compulsory.

  • According to the GINA, an employer can offer its employees an incentive to
    Certificate or other confirmation from a third party not acting on behalf of the employer, such as a pharmacy or a health department, that employees or their family members have been vaccinated. The EEOC also confirms that under the GINA an employer can require workers to provide documents or other evidence that the worker or a family member has been vaccinated.

  • As part of the GINA, an employer can offer its employees in exchange for a
    However, an employee receiving a vaccination administered by an employer or his agent must not incentivize an employee to have a family member receive a vaccination from an employer or his agent.

  • According to the GINA, an employer can offer vaccinations to the family members of an employee if they
    Employer takes certain steps to comply with GINA. In detail employer:

    • Employees cannot request that their family members be vaccinated

    • Cannot punish employees if their family members choose not to be vaccinated

    • Ensure that any medical information obtained from family members during the screening process is used only for the purpose of performing vaccination; will be treated confidentially; and is not made available to managers, supervisors or others who make employment decisions for the employees

    • Must obtain prior, knowing, voluntary, and written approval from the family member prior to asking any questions about her

The EEOC appears to be working on additional guidelines. Just before the EEOC guidelines were issued, the CDC issued new guidelines for unvaccinated people in the workplace. The EEOC is currently reviewing the CDC guidelines and we expect further guidelines in the near future.

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