The EEOC Updates Guidance Clarifying Mandatory COVID-19 Vaccinations Are Permitted Under Federal Law, Subject to “Reasonable Accommodations” and “Direct Threat” Assessments, and Allowing Employers to Provide Employees with Incentives for Vaccinations

December 17, 2021
Updated December 17, 2021. On December 14, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its guidance on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (the “guidance”) to clarify under what circumstances COVID-19 may be considered a disability under the Americans with Disabilities Act (“ADA”). The updated guidance has been incorporated into the below post.
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Updated November 18, 2021. On November 17, 2021, the EEOC updated its guidance to include more information about employer retaliation in pandemic-related employment situations.
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Updated October 29, 2021. On October 28, 2021, the EEOC updated its guidance to include an example of the EEOC’s internal form for employees to request religious accommodations from the vaccine mandate.  The EEOC notes that “[a]lthough [its] internal forms typically are not made public, it is included here given the extraordinary circumstances facing employers and employees due to the COVID-19 pandemic.”
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Updated October 26, 2021. On October 25, 2021, the EEOC updated and expanded its guidance to address questions about religious objections to employer COVID-19 vaccine requirements and how they interact with federal equal employment opportunity laws.
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On May 28, 2021, the EEOC updated its guidance, which provides that federal equal employment opportunity laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII of the Civil Rights Act (“Title VII”) and the ADA and other equal employment opportunity considerations. These principles apply regardless of where an employee gets the vaccine (i.e., in the community or from the employer). The guidance also states that employers may offer incentives to employees who voluntarily demonstrate that they received the COVID-19 vaccination.
Employer-Mandated Vaccination. The EEOC clarified that it was implicit in its prior guidance that employers generally may require all employees physically entering the workplace to be vaccinated except where an employer must provide a “reasonable accommodation” under Title VII or the ADA. 
Employers that have a vaccine requirement may need to respond to allegations that the requirement has a disparate impact on, or disproportionately excludes, employees based on their race, color, religion, sex, or national origin under Title VII or age under the Age Discrimination in Employment Act. The EEOC recommends that employers keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.
It would also be unlawful under federal law to apply a vaccination requirement to employees in a way that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason.
Reasonable Accommodations. In some circumstances, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business. Examples of a reasonable accommodation for an unvaccinated employee entering the workplace include:
  1. Wearing a face mask;
  2. Working at a social distance from coworkers or non-employees;
  3. Working a modified shift;
  4. Getting periodic tests for COVID-19;
  5. Teleworking; or
  6. Being reassigned.
Employees who are not vaccinated because of pregnancy may be entitled to adjustments to keep working, if the employer makes modifications or exceptions for other employees. These modifications may be the same as the accommodations made for an employee based on disability or religion.
As a best practice, the EEOC recommends that an employer introducing a mandatory COVID-19 vaccination policy notify all employees that the employer will consider requests for reasonable accommodation on an individualized basis. The EEOC also recommends that before instituting a mandatory vaccination policy, employers should provide managers, supervisors, and those responsible for implementing the policy with clear information about how to handle accommodation requests related to the policy, including how to recognize an accommodation request and to whom to refer the request for full consideration.

Religious Objections to COVID-19 Vaccine Mandates. Employees must tell their employer if they are requesting an exception to a COVID-19 vaccination requirement because of a conflict between that requirement and their sincerely held religious beliefs, practices, or observances. The guidance states that, as a best practice, employers should provide employees and applicants with information about whom to contact, and the procedures (if any) to use, to request a religious accommodation. The guidance includes, as an example, the religious accommodation request form the EEOC uses for its workplace.

Generally, under Title VII, an employer should assume that a request for religious accommodation is based on sincerely held religious beliefs. However, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer would be justified in making a limited factual inquiry and seeking additional supporting information. According to the guidance, Title VII does not protect social, political, or economic views, or personal preferences. Thus, objections to COVID-19 vaccination that are based on social, political, or personal preferences, or on nonreligious concerns about the possible effects of the vaccine, do not qualify as “religious beliefs” under Title VII.
Undue Hardship Under the ADA. The ADA requires that employers offer an available accommodation if one exists that does not pose an undue hardship, meaning a significant difficulty or expense. The EEOC recommends that employers consider all the options before denying an accommodation request. The proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees, who may be ineligible for a vaccination or whose vaccination status may be unknown, can impact the ADA undue hardship consideration. Employers may rely on recommendations from the Centers for Disease Control and Prevention when deciding whether an effective accommodation is available that would not pose an undue hardship.
Undue Hardship Under Title VII. Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from getting a COVID-19 vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship. Employers also may receive religious accommodation requests from individuals who wish to wait until an alternative version or specific brand of COVID-19 vaccine is available to the employee. Such requests should be processed according to the same standards that apply to other accommodation requests.
Under Title VII, courts define “undue hardship” as having more than minimal cost or burden on the employer. Considerations relevant to undue hardship can include, among other things, the proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees, whose vaccination status could be unknown or who may be ineligible for the vaccine. Ultimately, if an employee cannot be accommodated, employers should determine if any other rights apply under equal employment opportunity laws or other federal, state, and local authorities before taking adverse employment action against an unvaccinated employee.
“Direct Threat” Assessment. Under the ADA, an employer may require all employees to meet a qualification standard that is job-related and consistent with business necessity, such as a safety-related standard requiring COVID-19 vaccination. If a particular employee cannot meet such a safety-related qualification standard because of a disability, however, the employer may not require compliance for that employee unless it can demonstrate that the individual would pose a “direct threat” to the health or safety of the employee or others in the workplace. A “direct threat” is defined as “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.” 29 C.F.R. 1630.2(r). This determination can be broken down into two steps: (1) determining if there is a direct threat and, if there is, (2) assessing whether a reasonable accommodation would reduce or eliminate the threat.
To determine if an employee who is not vaccinated due to a disability poses a “direct threat” in the workplace, an employer first must make an individualized assessment of the employee’s present ability to safely perform the essential functions of the job. The factors that make up this assessment are: (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. The determination that a particular employee poses a direct threat should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19. Additionally, the assessment of direct threat should take account of the type of work environment, such as whether the employee works alone or with others or works inside or outside; the available ventilation; the frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees; the number of partially or fully vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing.
If the assessment demonstrates that an employee with a disability who is not vaccinated would pose a direct threat to self or others, the employer must consider whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate that threat.
Incentives. The EEOC’s guidance as to whether employers can offer incentives to employees who receive a vaccine distinguishes between whether the employee received a vaccination on their own and a vaccination administered by the employer or its agent.
For employees who receive the vaccine on their own, the EEOC’s guidance provides that requesting proof of vaccination is not a disability-related inquiry under the ADA, and also does not seek information protected by the Genetic Information Nondiscrimination Act (“GINA”), and therefore employers may offer incentives to employees who provide proof that they were vaccinated.

For employees who receive a vaccination through the employer or its agent, the guidance provides that incentives may be offered, as long as the incentive “is not so substantial as to be coercive.” The EEOC distinguishes between employer and third-party administered vaccines because employees will likely be required to disclose protected medical information as part of the vaccine provider’s pre-vaccination medical screening questions. An incentive that is too large could make employees feel pressured to disclose that protected medical information, and that undue pressure may violate the ADA.

Employers may not offer incentives for employees’ family members to receive the vaccine from the employer or its agent because the pre-vaccination medical screening questions would lead to the employer’s receipt of genetic information in the form of family medical history of the employee. Employers may still offer an employee’s family member the opportunity to be vaccinated by the employer or its agent, however, if they take steps to ensure GINA compliance.

Employers Must Keep Vaccination Documents Confidential. The ADA requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination. This ADA confidentiality requirement applies regardless of where the employee gets the vaccination. Although the equal employment opportunity laws themselves do not prevent employers from requiring employees to bring in documentation or other confirmation of vaccination, this information, like all medical information, must be kept confidential and stored separately from the employee’s personnel files under the ADA.

Retaliation. Job applicants and current and former employees are protected from retaliation by employers for asserting their rights under any of the federal EEO laws. The EEO laws prohibit workplace discrimination based on race, color, sex (including pregnancy, sexual orientation, and gender identity), national origin, religion, age (40 or over), disability, or genetic information. The guidance states that a “protected activity” can take many forms, including filing a charge of discrimination; complaining to a supervisor about coworker harassment; or requesting accommodation of a disability or a religious belief, practice, or observance, regardless of whether the request is granted or denied. In addition, the guidance notes that the ADA prohibits not only retaliation for protected EEO activity, but also “interference” with an individual’s exercise of ADA rights.

“Disability” Under the ADA. In some cases, an applicant’s or employee’s COVID-19 may cause impairments that are themselves disabilities under the ADA, regardless of whether the initial case of COVID-19 itself constituted an actual disability. An individualized assessment is necessary to determine whether the effects of a person’s COVID-19 constitute an actual disability under the ADA. An applicant or employee whose COVID-19 results in mild symptoms that resolve in a few weeks—with no other consequences—will generally not have an ADA disability that could make them eligible to receive a reasonable accommodation. The guidance states that an employer risks violating the ADA if it relies on “myths, fears, or stereotypes about a condition to disallow the employee’s return to work once the employee is no longer infectious and, therefore, medically able to return without posing a direct threat to others.”
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The Coronavirus situation is fluid, and laws are changing rapidly. Our recent memoranda and other information discussing various aspects of Coronavirus can be found here.