BFV Perspectives, Covid-19 Updates, | Jun 10, 2021

EEOC Guidance on COVID Vaccines (Updated)

The EEOC guidance on COVID vaccines is now updated. On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its technical assistance related to the COVID-19 pandemic and vaccinations.

The expanded EEOC guidance on COVID vaccines provides new information, including information for disability related inquires, such as the Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act. For instance, it addresses incentives that employers may offer employees to provide documentation of vaccination from the employer or a third party, such as a pharmacy.

EEOC Guidance on COVID Vaccines: Summary of Key Updates
Key updates to the EEOC’s guidance are summarized below:

  • Employers Can Mandate Vaccinations. Federal EEO laws do not prevent employers from requiring employees that physically enter the workplace to be vaccinated for COVID-19. This holds true so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations.  Other laws, not in EEOC’s jurisdiction, may place additional restrictions on employers.  The EEOC cautions that from an EEO perspective, employers should 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 mandatory vaccination requirement.

  • Reasonable Accommodations for those Unable to be Vaccinated for Religious Beliefs. The technical assistance explains how an employer should respond to employees that are unable to vaccinate for COVID-19 (or provide documentation) due to religious belief, practice or observance. 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, an employer should thoroughly consider all possible reasonable accommodations, including telework and reassignment.
  • Employers may Offer Incentives. Employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive. The EEOC cautions that because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information. Unfortunately, the technical assistance does not provide examples of what incentives may be considered coercive.


  • Employers may Provide Information about Vaccines. Employers may provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination. The technical assistance highlights federal government resources available to those seeking more information about how to get vaccinated.

The technical assistance provides several updates in the form of FAQ’s.  Below are excerpts from the updated FAQ’s regarding COVID-19 vaccinations.   

K.2. What are some examples of reasonable accommodations or modifications that employers may have to provide to employees who do not get vaccinated due to disability; religious beliefs, practices, or observance; or pregnancy?  (5/28/21)
An employee who does not get vaccinated due to a disability (covered by the ADA) or a sincerely held religious belief, practice, or observance (covered by Title VII) may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business.

For example, as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment. 

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.

K.4. Is information about an employee’s COVID-19 vaccination confidential medical information under the ADA?  (5/28/21)
Yes. 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 EEO 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.

K.11. What should an employer do if an employee who is fully vaccinated for COVID-19 requests accommodation for an underlying disability because of a continuing concern that he or she faces a heightened risk of severe illness from a COVID-19 infection, despite being vaccinated? (5/28/21)
Employers who receive a reasonable accommodation request from an employee should process the request in accordance with applicable ADA standards. 

When an employee asks for a reasonable accommodation, whether the employee is fully vaccinated or not, the employer should engage in an interactive process to determine if 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. 

For example, some individuals who are immunocompromised might still need reasonable accommodations because their conditions may mean that the vaccines may not offer them the same measure of protection as other vaccinated individuals.  If there is a disability-related need for accommodation, an employer must explore potential reasonable accommodations that may be provided absent undue hardship.

The EEOC’s guidance on COVID vaccines provides updated and helpful information.  However, there are still many issues that the EEOC did not squarely address regarding incentives and reasonable accommodations.  The EEOC Chair Charlotte Burrows has stated that the EEOC will continue to clarify and update the COVID-19 technical assistance.  Hopefully, additional guidance on employer vaccination programs will be forthcoming. 

As always, please let me know if I can help.

BFV Perspectives, Covid-19 Updates, | Jun 10, 2021
Kenneth N. Winkler
Kenneth N. Winkler

Kenneth Winklera shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.