EEOC Guidance Allows Employers to Require Employees to Receive COVID-19 Vaccination

On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued new guidance for employers regarding the recently approved COVID-19 vaccines and the implications under applicable equal employment opportunity laws, including the Americans with Disabilities Act (the “ADA”) and Title VII of the Civil Rights Act of 1964, as amended (“Title VII”).  A summary of the key points addressed by the EEOC’s guidance is below.
I.  An employer’s administration of the COVID-19 vaccine is not considered a “medical examination” under the ADA. 
According to the EEOC, an employer administering the COVID-19 to employees or requiring that an employee receive the COVID-19 vaccine as a condition to returning to the workplace, is not considered a “medical examination” under the ADA because the employer is not seeking information about an individual’s impairment or current health status. 
However, pre-screening vaccination questions may implicate the ADA’s rules regarding disability-related inquiries.  As such, an employer that administers the COVID-19 vaccine must be able to show that pre-screening questions are job-related and consistent with business necessity. 

If an employer offers to vaccinate employees on a voluntary, optional basis, the “employee’s decision to answer pre-screening, disability-related questions also must be voluntary.” If an employee chooses not to answer pre-screening, disability-related questions, an employer is permitted to refuse to administer the vaccine but may not retaliate against an employee for refusing to answer such questions.

Any employee medical information obtained by an employee in connection with a vaccination program must be maintained confidential under the ADA.

II.   Asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry.

The EEOC Guidance also clarifies that an employer’s request for an employee to provide proof of receiving a COVID-19 vaccination “is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.”  The EEOC recommends that if an employer requires an employee to provide proof that they have received a COVID-19 vaccination from a pharmacy or the employee’s own health care provider, the employer should consider warning the employee not to provide any potential medical information that would be covered by the ADA.

III. Responding to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a disability. 

The EEOC guidance further clarifies that if a “vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an 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.”  This standard requires an individualized “assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.”  If an employer concludes that an employee who cannot be vaccinated due to a disability poses a direct threat to the workplace, the employer “cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.”

For example, an employer may be able to reasonably accommodate such an employee if the employee can perform their job functions working remotely.  In determining whether an accommodation is possible, employers must evaluate the facts and circumstances relating to the particular job duties and workplace. 

IV. Responding to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief.

If an employee’s “sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII.”  Further, because the definition of religion is broad, employers should assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.   The EEOC Guidance notes that an “undue hardship” means something more than “a de minimis cost or burden on the employer.”

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, the employer may exclude the employee from the workplace, subject to compliance with any other state or local laws or regulations.

If you have any questions regarding this update, or if SFBBG can assist with another matter, please contact Norm Finkel (, or call (312) 648-2300.

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