As an unprecedented operation begins to deploy millions of doses of COVID-19 vaccines across the country, employers question whether they may lawfully require that employees be vaccinated. Today, the U.S. Equal Employment Opportunity Commission (EEOC) weighed in with guidance.

The EEOC guidance makes points including the following:

  1. An employer (or a vendor contracted by the employer) administering a COVID-19 vaccine to employees is not conducting “medical examinations” under the Americans with Disabilities Act (ADA). The EEOC’s rationale is that simply injecting the vaccine does not, as is required for a procedure to constitute a medical exam, seek or acquire information about an employee’s impairments or health status.
  2. Screening questions posed to potential vaccine recipients before they receive the injections are “likely to elicit information about a disability.” Thus, in order to lawfully subject employees to such screening, the employer bears the burden of proving that the questions are job-related and consistent with business necessity, according to the EEOC. “To meet this standard,” the guidance states, “an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.”

Where an employee receives the vaccination from a provider other than the employer or a vendor not contracted by the employer, however, and the employee simply supplies proof of vaccination to the employer, the employer would not be making disability-related inquiries. In that event, according to the EEOC, the employer would not be required to prove that any screening questions were job-related or consistent with business necessity.

  1. Where an employee declines a COVID-19 vaccination on the grounds of a claimed disability, the employer must engage in the interactive process. In some instances, permitting the employee to work remotely may constitute a reasonable accommodation, according to the guidance. In assessing whether allowing an employee to continue working onsite would constitute an undue burden, the EEOC wrote that “the prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown” may be relevant.
  2. Where an employee declines a COVID-19 vaccination on grounds of a religious practice or belief, the employer must extend reasonable accommodation, if possible, unless doing so would be an undue burden. In this context, the employer “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.” Where, however, an employer has “an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.”
  3. An employer administering a COVID-19 vaccine to employees or requiring proof of vaccination does not implicate employee rights under Title II of the Genetic Information Nondiscrimination Act (GINA). Employers do not use genetic information to make employment decisions, or acquire or disclose genetic information as defined by GINA, in administering vaccinations or requiring that employees show proof they were vaccinated.
  4. Where vaccinations are administered by the employer, pre-vaccination screening questions may implicate GINA. Such screening questions may, for example, include questions regarding the immune systems of family members, which may invoke Title II of GINA. The guidance recommends that, where the screening questions may implicate GINA, the employer consider requiring that employees provide proof of vaccination instead of the employer administering the vaccination program, thereby avoiding asking or knowing the answers to any screening questions.


Today’s guidance from the EEOC may be found in “Part K. Vaccinations” here.

While important, the guidance is input from only one of several perspectives that should be considered as employers explore how they will approach the vaccination question. State and local equal employment opportunity legal schemes also must be considered. In unionized workforces, whether and how the employer may impose a vaccination requirement may be a term of employment requiring collective bargaining.

Whether the employer and workplace are within an essential critical infrastructure sector under California law, and thus the employees are allowed to work onsite at this time, not merely remotely, also bears on the question of whether and when an employer may consider mandating vaccination.

Please contact your Fox Rothschild LLP counsel for help addressing the issue.

This post provides general information and does not constitute legal advice to any person with respect to any circumstance. This post does not create an attorney-client relationship with any person.