New EEOC Steering On Vaccinations – Employment and HR

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New EEOC guidelines on vaccinations

August 18, 2021

Brown Winick

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With Americans continuing to be vaccinated in the wake of the COVID-19 pandemic and as recommended by the CDC, the Equal Employment Opportunity Commission (“EEOC”) issued its COVID-19 guidelines on employers and COVID-19 on May 28, 2021 -Vaccines updated. The new EEC guidelines on vaccination will be updated in the form of questions and answers on mandatory vaccination guidelines, shelter, confidentiality and incentives.

The updated guidelines reaffirm the EEOC’s original December 2020 position that employers can order that all workers who physically enter the workplace are vaccinated. However, such a mandate is subject to reasonable accommodation for disabilities, including disabilities due to pregnancy-related illnesses or genuine religious beliefs. In addition, the EEOC specifically stated that employers with mandatory vaccination policies should be aware if the policy has different effects on certain workers because of a protected characteristic, as some individuals or demographics may face greater barriers to COVID-19 vaccination are . Because pre-vaccination questions can also provide information about a disability, the Americans with Disabilities Act (“ADA”) requires that questions be “job-related and compatible with business needs.”

Reasonable Precautions

As noted above, employers can require workers to be vaccinated in the workplace, provided that reasonable accommodation is in place for disability, pregnancy-related conditions, and genuine religious beliefs. Employers with mandatory vaccination policies should advise their employees that reasonable accommodation requests will be considered on an individual basis. Accommodation requests from the vaccination mandate should be treated like any other accommodation request. Employers need to engage in an interactive process with the employee to determine what is the best course of action for the future.

The guidelines also indicate that even a fully vaccinated employee may request reasonable accommodation due to disability-related concerns that he or she may be at risk from exposure to COVID-19. Employers should process such a request as they would any other placement request and conduct the interactive process with the employee as per ADA mandates.


According to the guidelines, the employee documentation or the confirmation of the COVID-19 vaccination are confidential medical information within the meaning of the ADA. Although the ADA does not prohibit employers from requesting proof of vaccination, this information must be kept confidential and kept in a medical file separate from the employee’s personnel file.

Vaccination incentives

According to the guidelines, employers can encourage employees and their family members to be vaccinated. Employers can provide information to employees and their family members to educate them about COVID-19 vaccines; Raising awareness of the benefits of vaccination; address general questions and concerns; Discourage incentives for employees receiving the vaccines in certain circumstances.

Employers can incentivize workers to voluntarily certify vaccination as long as genetic information is not acquired during vaccine administration or certification. In the case of vaccinations offered by the employer or his agent, the incentive offered must not be “significant enough to be enforced” in order to prevent workers from feeling pressured to divulge proprietary medical information.

While vaccination incentives for workers are permitted as described above, employers should be cautious in offering vaccination incentives to the employee’s family members if the vaccine is offered by the employer or employer representative. If providing an incentive to a worker’s family member would result in the family member answering pre-vaccination medical questions, it could lead to a violation of the GINA, which prohibits employers from offering incentives in exchange for genetic information.

Originally published 6/21/2021

The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.

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