ATTENTION ALL EMPLOYERS: EEOC Issues Updated Guidance on Vaccinations (Mandatory Vaccine Policies, Vaccine Status Inquiries, Accommodations, and Vaccine Incentives)

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On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) provided updated COVID-19 guidance to its frequently asked questions (“FAQs”) regarding COVID-19, focusing on vaccinations. Set forth are the highlights of the guidance HERE, in Section K. Note that NFC provided information previously on the EEOC FAQs HERE.

Mandatory Vaccine Policies:

  • The EEOC confirmed that employers can require that their employees be vaccinated. However, employers must ensure that any employee who does not wish to be vaccinated due to a disability or sincerely held religious belief be provided the opportunity to go through an interactive process (a mutual discussion where the employer and employee offer solutions) to attempt to arrive at an accommodation.
  • Additionally, employers should seek to avoid imposing the vaccination requirement in such a way that it has a disparate impact on, or disproportionately excludes, employees based on protected characteristics such as race, color, religion, sex, age, or national origin. Further, it is unlawful 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.
  • Note that the EEOC clarified that requiring vaccinations administered by the employer itself, its agent, or a third party does not violate Title II of the “Genetic Information Nondiscrimination Act” (“GINA”).

Vaccine Status Inquiries

  • The EEOC confirmed that an employer may ask employees whether they have received a COVID-19 vaccination, and may require proof/documentation of the vaccination. (Note that this is subject to individual state laws that may not permit this practice.) However, employers should not ask follow-up questions about the reason that an employee is not vaccinated, as that could elicit disability-related information.
  • Further, and importantly, an employee’s vaccination status is “confidential medical information.” Thus the information must be kept confidential and stored separately from the employees’ personnel files, as required under disability laws.


  • Generally, the EEOC advised that as a “best practice,” an employer introducing a COVID-19 vaccination policy and requiring documentation or other confirmation of vaccination should notify all employees that the employer will consider requests for reasonable accommodations based on disability or religion on an individualized basis.

Disability requests:

  • If an employee is not vaccinated and requests an exemption due to a disability, the employer should review the employee’s status as to whether he/she constitutes a “direct threat” as defined under the Americans with Disabilities Act (“ADA”). While the EEOC sets forth “direct threat” considerations, given the lack of clarity on whether an unvaccinated individual may or may not be a direct threat, our recommendation at this point is to always move to the next step and engage in the interactive process.
  • The employer should utilize the interactive process with the employee to determine an accommodation, such as: wearing a mask, working a staggered shift, making changes in the work environment (such as improving ventilation systems or limiting contact with other employees and non-employees), getting periodic tests for COVID-19, permitting telework if feasible, or reassigning the employee to a vacant position in a different workspace.
  • An employee must be accommodated unless there is an “undue hardship” for the employer (under the ADA, a significant development or expense).
  • There may be employees who, despite being vaccinated, may request accommodations due to an underlying disability, such as being immunocompromised. In that case, the employer should go through the usual interactive process.

Religious requests:

  • With employees who have sincerely held religious objections to getting a vaccine, employers must also proceed through an interactive process, and accommodate the employee unless there is an “undue hardship.”
  • Under Title VII, courts define “undue hardship” as having more than a minimal cost or burden on the employer (a somewhat easier standard for employers to meet than that required under the ADA). 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.
  • Accommodations would be the same as specified above relating to accommodations for those with disabilities.
  • Ultimately, if an employee cannot be accommodated, employers should determine if any other rights apply under the EEO laws or other federal, state, and local authorities before taking adverse employment action against an unvaccinated employee.

Pregnant employees:

  • Employees who are not vaccinated because of pregnancy may be entitled (under Title VII) 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.

Vaccine incentives

  • Incentives to receive voluntary confirmation of a vaccine administered by a third party (such as a pharmacy, public health department, or a health care provider in the community) are permissible under the ADA. The EEOC did not specify a limitation on such incentives.
  • However, an incentive for receiving the vaccine offered by the employer or its agent is only acceptable “if any incentive (which includes both rewards and penalties) is not so substantial as to be coercive.” Previous guidance had suggested that water bottles or minimal gift cards would fit this directive.
  • Such incentives also do not violate Title II of GINA. However, an employer may not offer an incentive to an employee so that the employee’s family member gets vaccinated if the vaccination will be done by the employer or its agent, as that could be a violation of Title II of GINA. They can offer the opportunity for a family member to be vaccinated as long as no incentive is involved and employers take other steps to ensure GINA compliance.
  • Employers can also encourage vaccination through approaches such as education, addressing common questions, etc. The guidance provides links to federal resources that are relevant.

While the above summary, and the updated FAQs themselves, do provide additional information, many more questions will arise as we navigate the next period of COVID-19 questions. We will keep you posted on all relevant developments!

If you have any questions relating to this eAlert or any other COVID-19 issue, please contact NFC’s COVID-19 Response Team as we are continuing to monitor the rapidly changing landscape relating to this global pandemic. Please feel free to reach out to the NFC Attorney with whom you typically work or call us directly.


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