EEOC Issues Guidance on Employer-Mandated COVID-19 Vaccinations

December 28, 2020    •    2 min read

On December 16, 2020, the Equal Employment Opportunity Commission issued its anticipated guidance on employer-mandated COVID-19 vaccinations. An employer may implement a mandatory vaccination policy so long as the employer complies with the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964 (“Title VII”) and Title II of the Genetic Information Nondiscrimination Act. Here are the key compliance issues that you need to be aware of if you are considering a mandatory vaccination policy for your business:

  • Direct threat. Mandatory vaccination policies that screen out individuals with disabilities require the employer to show that an unvaccinated employee would pose a direct threat due to 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.” The employer should consider four factors when determining whether a direct threat exist: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.
  • Disability accommodation. If the employer concludes that the unvaccinated employee is a direct threat because the individual will expose others to the virus at work, the employer must engage in an interactive process with the employee to determine if, absent an undue hardship on the employer, a reasonable accommodation is available that would eliminate or reduce the risk posed by the unvaccinated employee. If the direct threat cannot be “reduced to an acceptable level” the employee may be restricted from the workplace, but the employer must further consider other accommodations including, but not limited to, remote work and available leave options.
  • Religious accommodation. If an employee objects to the vaccination due to a sincerely held religious belief, the employer must provide a reasonable accommodation for the religious belief unless doing so would impose an undue hardship on the employer. Under Title VII, an undue hardship is more than a de minimis cost or burden.
  • Pre-screening questions. If the employer will administer the vaccine, the employer must show that any pre-screening medical questions it asks before administering the vaccine are “job-related and consistent with business necessity.” This is not required if the vaccination program is voluntary or if the employee receives the vaccination from an independent third-party such as a pharmacy or other health care provider.
  • Proof of vaccination. Employers may require that employees provide proof of a vaccination obtained from someone other than the employer. The employer should be clear that the employee should not provide any medical or genetic information as part of the requested proof. If an employee fails to provide timely proof of a required vaccination, any follow-up inquiry by the employer about why the employee did not receive the vaccination may be construed as eliciting information about a disability. In such case, the employer must be able to demonstrate that the inquiry is “job-related and consistent with business necessity.” The administrative process for handling vaccination proof must therefore be handled carefully.


Employers should carefully consider if a mandatory vaccination policy is the best solution for their business. For more information, or for employment-related questions generally, please contact Susan Rodgers at [email protected], Jerry Chattman at [email protected], Katie Duffy at [email protected] or Heather Steele at [email protected].

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