Thought Leadership / News
June 7, 2021 
 Thought Leadership
EEOC Update on Workplace Practices Related to COVID-19 Vaccinations

Gray Reed Legal Alert

The EEOC recently updated its guidance related to the intersection of employment discrimination laws and COVID-19 vaccinations. In addition to further defining the scope of lawful vaccination incentives, the update clarifies that, subject to certain caveats, employers can: (1) mandate COVID-19 vaccines for employees and (2) ask employees to disclose their vaccination status. The update provides employers with helpful context for assessing workplace policies related to COVID-19.  At the same time, it calls for continued consideration of the impact of COVID-19 vaccinations on workplace safety and compliance.

Employers may require employees to be vaccinated.

Affirming our prior analysis, the EEOC now explicitly states that federal employment laws permit an employer to mandate that all employees physically entering the workplace to be vaccinated for COVID-19. However, employers must still comply with the reasonable accommodation provisions of applicable laws—namely, the Americans with Disabilities Act (ADA) and Title VII.

Employers should be mindful of that fact that some individuals or groups face greater obstacles to receiving a COVID-19 vaccine and are more likely to be negatively impacted by a vaccine requirement. Additionally, employers must pay careful attention to state and local laws, which may place additional restrictions on workplace vaccination requirements.

Employers must reasonably accommodate employees unable or unwilling to be vaccinated due to their disability or religion.

Under the ADA, employers must accommodate employees with a disability that prevents them from getting a COVID-19 vaccine, unless the accommodation poses an undue hardship. An employer cannot require compliance for such an employee unless it demonstrates that the unvaccinated employee would pose a direct threat to the health and safety of the employee or others in the workplace.

A “direct threat” determination requires employers to make an individualized assessment. The update provides real-world factors for employers to consider in making such a determination:  (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that a particular harm will occur; (4) the imminence of the potential harm; and (5) the type of work environment. In assessing the type of work environment, employers may consider factors such as: (1) whether the employee works alone or with others; (2) whether the employee works inside or outside; (3) the available ventilation; (4) the frequency and duration of direct interaction the employee typically has with other employees and/or non-employees; (5) the number of partially vaccinated individuals in the workplace; (6) whether other employees are wearing masks or undergoing routine screening tests; and (7) the space available for social distancing.

The determination should be based on a “reasonable medical judgment that relies on the most current medical knowledge about COVID-19” which may include: (1) the level of community threat at the time of assessment; (2) statements from the CDC; (3) the employee’s health care provider, with the employee’s consent.

If the assessment shows that an unvaccinated employee with a disability poses a direct threat to self or others, employers must consider whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate that threat. Employers may rely on CDC recommendations when deciding whether there is an effective accommodation available that would not pose an undue hardship. As for potential reasonable accommodations, EEOC offers the following non-exclusive examples:

[R]equiring the employee to wear a mask, work a staggered shift, making changes in the work environment (such as improving ventilation systems or limiting contact with other employees and non-employees), permitting telework if feasible, or reassigning the employee to a vacant position in a different workspace.

Under Title VII, employers must provide employees, who sincerely hold a religious belief, practice, or observance that prevents them from getting a COVID-19 vaccine, with a reasonable accommodation, unless the accommodation poses an undue hardship. A religious accommodation request from an employee who wishes to wait until an alternative version or specific brand of COVID-19 vaccine becomes available should be processed according to the same standards applicable to other requests for accommodation set forth above. Employers must engage in an interactive process to find a reasonable accommodation and should thoroughly consider all possibilities, including telework and reassignment. Employers may rely on CDC recommendations when deciding whether there is a reasonable accommodation available.

The definition of religion under Title VII is broad and the EEOC suggests that employers “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance. However, if an employee requests a religious accommodation, and an employer is aware of facts that provide 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.”

Employers must be prepared to handle exemption requests from employees unable or unwilling to be vaccinated due to pregnancy.

Employers may require pregnant employees to be vaccinated. Under Title VII, as amended by the Pregnancy Discrimination Act, pregnant employees may seek job adjustments or request exemptions from a COVID-19 vaccination requirement. A pregnant employee may also be entitled to a reasonable accommodation under the ADA. Employers must be sure that a pregnant employee is not discriminated against as compared to other employees with a similar ability or inability to work. This means pregnant employees unable or unwilling to get vaccinated may be entitled to job modifications (including telework), changes to work schedules or assignments, and leave, to the extent such modifications are provided for other similarly situated employees.

Employers must reasonably accommodate fully-vaccinated employees at heightened risk.

The update introduces a new type of accommodation request involving an employee who is fully vaccinated for COVID-19 but who requests an accommodation based on a continuing concern for heightened risk of severe illness from a COVID-19 infection. For example, fully vaccinated individuals who are immunocompromised may need reasonable accommodations, since the vaccine may not offer them the same level of protection as others.

These requests should be handled in accordance with applicable ADA standards, where an employer engages in an interactive process to determine whether there is a disability-related need for reasonable accommodation. “This process typically includes seeking information from the employee’s health care provider with the employee’s consent explaining why an accommodation is needed.” If there is a demonstrated need, employers must explore potential reasonable accommodations that are available absent undue hardship.

Employers must keep information about an employee’s COVID-19 vaccination confidential.

The EEOC previously advised that an employer’s request self-disclosure of vaccination status by employees or documentation or other confirmation of vaccination status from a third party is not a medical examination or disability-related inquiry. Therefore, such a request does not run afoul of the ADA or the Genetic Information Non-Discrimination Act (GINA).

Despite this position, the update makes clear that the confidentiality requirement for employee medical information found in the ADA applies to documentation or other confirmation of COVID-19 vaccination. Employers must keep this in mind when faced with requests for disclosure of employee vaccination status from co-workers, customers, or other third parties. While federal employment laws do not prevent employers from requesting or requiring employees to provide documentation or other confirmation of vaccination, this new guidance confirms that such information must be kept confidential and must be stored separately from the employee personnel files.

Keep in mind that information collected by employers administering vaccines to employees may be subject to additional confidentiality requirements under the law. Employers administering vaccines—or contracting with third parties to administer vaccines—to employees should consult with counsel to determine whether they may be subject to additional federal or state law obligations.


Employers should continue to refer to CDC protocols and EEOC guidance in determining reasonable accommodations in order to provide a safe and healthy workplace for all employees. As always, employers should consider seeking counsel prior to implementing a vaccination policy or excluding an employee from the workplace because of refusal to be vaccinated.