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COVID-19 Vaccination Policies: EEOC Weighs In

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) updated its guidance to include FAQs on the administration of the COVID-19 vaccine in the workplace. Like other guidance relating to COVID-19 issues, there may be changes as more information is gathered regarding the vaccine and its administration.

Mandatory Vaccinations

Importantly, the EEOC’s guidance provides that employers can, in certain circumstances, mandate employees to obtain a COVID-19 vaccine. Further, the guidance confirms that a vaccination requirement by itself is not a “medical examination” under the Americans with Disabilities Act (ADA).

Employers may mandate that an employee gets vaccinated if they determine that the employee poses a direct threat under the ADA’s “direct threat” analysis. This means that an employer would have to determine that an employee would pose a direct threat to themselves or others in the workplace if the employee did not get vaccinated. A direct threat analysis is an individualized assessment that considers the following four factors: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. Employers would not have much support for mandating employees who normally (i.e., pre-COVID-19) work remotely full-time and do not interact with co-workers or customers. However, employers may need to conduct a more nuanced analysis with those employees who are only temporarily remote and have some occasional interactions with co-workers and customers.

Additionally, while not expressly covered in the EEOC guidance, employers will need to be mindful of the practical implications of requiring vaccinations based on vaccine supply and distribution. For example, mandating that all on-site employees obtain the vaccine before reporting back to work in these early stages of distribution may result in a lack of available employees due to the limited availability of vaccines and the prioritizing of who is able to receive one. There also may be other factors that impact an employer’s desire to implement a mandatory vaccination requirement in unionized settings.

Disability and Religious Accommodations

Just like many other workplace policies, an employer’s mandatory vaccination requirement may be subject to possible accommodations for disability and/or religious reasons. These types of accommodation requests raise common issues that arise each year for certain employers (e.g., healthcare providers) that require their workers to obtain seasonal flu vaccinations.

The EEOC cautions that managers and supervisors who are responsible for communicating with employees about compliance with any vaccination requirements should be trained and be able to recognize accommodation requests and make an individualized assessment of the request. Requests for accommodations may come in a variety of ways, including verbally or in writing, and employees do not have to use any “magic words.” Managers and supervisors should be prepared to identify accommodation requests in order to engage in an interactive process with employees, and also to know when to escalate requests internally to human resources professionals or engage outside counsel, when appropriate.

If an individual who is unvaccinated would pose a direct threat in the workplace and cannot be vaccinated because of a disability, the employer should then determine if there is a way to provide a reasonable accommodation that, without undue hardship, would eliminate or reduce the risk of the employee posing a direct threat. If it is not possible to reduce or eliminate the direct threat posed by the unvaccinated individual in the workplace, then the employer can exclude the employee from physically entering the workplace. In such cases, the employer may still need to explore certain reasonable accommodations for the employee, such as working remotely, as long as the accommodation would not pose an undue hardship. Further, employers should be mindful that even if they exclude from the workplace an employee who refuses to obtain a vaccine, the employee may still be able to take advantage of other leave policies.

For employees whose religious practices prevent them from obtaining a COVID-19 vaccine, employers may still need to provide reasonable accommodation unless doing so would cause an undue hardship under Title VII, which is a less demanding standard than under the ADA. Under Title VII, an undue hardship to an employer just has to be something that imposes more than a de minimis cost or burden on the employer.

Proof of Vaccination

Employers may also require their employees to provide proof that they obtained the vaccine. Care should be taken to ensure employees do not provide other medical information that may come from a healthcare provider along with such proof. If such other health information is received, employers must take steps to maintain confidentiality and keep the documentation in a separate medical file in accordance with ADA standards.

Additionally, if an employer administers the vaccine itself or contracts with a third party to administer the vaccine on behalf of the employer for the employer’s workforce, then certain pre-vaccination screening questions may also implicate ADA concerns, including having to be “job-related and consistent with business necessity.” Concerns under the Genetic Information Nondiscrimination Act (GINA) may also arise (for example, to the extent any screening questions concern family medical history). Until more information is known about the required screening questions for administering the vaccine, a better approach may be to have employees obtain the vaccine and proof of vaccination from an employee’s own healthcare provider or other nonemployer-related third party.

The arrival of the COVID-19 vaccine marked a significant step in the battle against the virus. The EEOC’s guidance is a significant step in helping employers navigate their options for 2021. Employers will have to assess whether a mandatory vaccination requirement will make sense for their own particular workforce and work environment. Employers will also have to develop policies and strategies for addressing accommodation requests and providing information to employees about the vaccine. Specific questions regarding the COVID-19 vaccine and the workplace should be directed to legal counsel.

We at Hinckley Allen are here to assist.


Hinckley Allen will continue to monitor the ever-developing COVID-19 situation and provide updates as appropriate. For further information, contact any member of our Labor & Employment Group.

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