Legal Alert: EEOC provides guidance on mandatory Covid-19 vaccinations in the workplace

Last week, the Equal Employment Opportunity Commission issued guidance that may prove useful as the COVID-19 vaccines are distributed across the United States and become available to the public. The guidance suggests that employers will generally be able to require their employees to get vaccinated against Covid-19 prior to re-entering the workplace whether administered by the employer or a third-party provider. However, employers should consider several important caveats before implementing such a policy.

Americans with Disabilities Act

While the ADA generally prohibits employers from making medical examinations, the EEOC does not consider the vaccination a medical examination. However, questions necessary to prescreen employees for the vaccination may elicit otherwise impermissible information about a disability. Accordingly, in the case of employers that choose to administer the vaccine, the employer must show that any prescreening questions asked to employees are “job-related and consistent with business necessity” and cannot retaliate against an employee who chooses not to answer the prescreening questions. An employer may avoid the requirement of showing that the prescreening questions are job-related and consistent with business necessity by making the vaccination (and questions) strictly voluntary, or by requiring employees to get vaccinated by an unrelated third party and cautioning the employee not to disclose medical information to the employer when providing proof of vaccination.

In addition, if an employee indicates that they cannot be vaccinated against Covid-19 because of a disability, an employer should undertake an individualized assessment to determine if that unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Even if there is a direct threat presented by an unvaccinated individual at the worksite, the employer may not exclude the employee unless there is no way to provide a reasonable accommodation, absent undue hardship, that would eliminate or reduce the risk.

Title VII

If an employee indicates that they cannot be vaccinated against Covid-19 because of a sincerely held religious belief, practice, or observance, the employer must provide a reasonable accommodation unless it would pose an undue hardship on the employer. The EEOC points out that Courts have previously defined ‘undue hardship’ under Title VII as having more than a de minimis cost or burden on the employer. Generally, if an employee requests a religious accommodation, an employer should “ordinarily assume that an employee’s request is based on a sincerely held religious belief,” but may be justified in requesting additionally supporting documentation if the employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance.

Drafting a Vaccination Policy

Employers seeking to impose a mandatory vaccination policy should consult a qualified attorney to verify that their actions conform with EEOC guidance, and to ensure that managers and supervisors are trained in communicating with employees to recognize any accommodation request. RL&L attorneys are available to assist with any questions or concerns on this guidance, or on other employment matters relating to the Covid-19 pandemic.


Disclaimer: The foregoing is not legal advice and does not create an attorney-client relationship. If you have any questions or require any assistance, please contact the head of our employment law practice, Kate Frenzinger,, 520-792-4800 or 480-663-9800.