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After tens of millions of Americans have been infected, and with more than 300,000 dead, the Food and Drug Administration issued an Emergency Use Authorization (EUA) for the first COVID-19 vaccine. Several additional vaccines are expected in the months and years ahead. These vaccines offer employers the hope of a return to normality. But with significant numbers of employees wary of vaccines, the question of whether to mandate vaccinations—and what to do if employees refuse—is front-and-center.

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance regarding the vaccine and its interaction with disability and EEO laws. Importantly, EEOC acknowledges that employers may mandate vaccinations. However, this ability is limited by the requirements of the Americans with Disabilities Act (ADA) and Title VII.

Despite this guidance from the EEOC, there is still uncertainty as to whether employers should mandate COVID-19 vaccinations. The U.S. Surgeon General, Jerome Adams, opined that companies should not require vaccinations, even if legally permitted, because current COVID-19 vaccines have not been approved, only authorized. (For more information on the difference between EUA and full vaccine approval, please see the recent alert from our colleagues: The Vaccine Mandate: What Healthcare Employers Need to Know About Mandating the COVID-19 Vaccine.)

Below, we review several specific issues that the EEOC addressed regarding employers that decide to mandate vaccinations, either with programs in the workplace or by requiring proof of vaccination.

How Should Employers Respond to Disability-Related Concerns or Religious Objections?

Under the guidance, employers must provide exemptions for employees who cannot receive the vaccine due to a disability (ADA) or their sincerely-held religious beliefs (Title VII). Employers may be able to exclude from the workplace those employees who do not receive the vaccine for disability or religious reasons, but only if the employees’ presence poses a direct threat to the workplace and a reasonable accommodation cannot reduce that threat to an acceptable level. In determining whether a direct threat exists, employers should conduct an individualized assessment of four factors in determining whether a direct threat exists:

  1. the duration of the risk;
  2. the nature and severity of the potential harm;
  3. the likelihood that the potential harm will occur; and
  4. the imminence of the potential harm. 

The EEOC notes that a conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite. Therefore, given the current nature of the virus, the direct threat standard is relatively easy for employers to meet.

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely-held religious belief, practice, or observance, and there is no reasonable accommodation possible, then the EEOC explains that it would be lawful for the employer to exclude the employee from the workplace. Excluding employees, of course, is different from terminating them: the EEOC points out that employees who cannot come to the workplace may still be entitled to other accommodations, such as working remotely.

Not every employee who refuses to be vaccinated will have a disability or a religious reason for the refusal. For that reason, employers may need to engage the employee in discussions regarding the reasons for the refusal. In the course of such discussions, information about a disability may arise.

Do Vaccinations Constitute a Medical Exam under the ADA? What About Pre-screening Vaccination Questions?

Although the administration of a vaccination is not a medical examination, the EEOC provides that pre-screening vaccination questions likely constitute a medical examination because they elicit information about a disability. Therefore, employers must show that pre-screening questions it asks employees are “job-related and consistent with business necessity.” 

To meet this standard, the EEOC provides that “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.” Again, given the current nature of the virus, the direct threat standard is relatively easy for employers to meet.

There are two exceptions to when pre-screening questions constitute a medical examination: (1) where the vaccine program is voluntary and therefore the employee’s decision to answer pre-screening questions is voluntary; and (2) when the employee receives an employer-required vaccine “from a third party that does not have a contract with the employer, such as a pharmacy or other healthcare provider.” 

Can Employers Require Provide Proof of Vaccination?

The EEOC also clarified that employers who choose not to have vaccines administered at the workplace do not violate the ADA by requiring employees to provide proof that they received a vaccination elsewhere. However, in order to prevent eliciting information that may reveal a disability, the EEOC advises employers to make clear to employees that any proof they provide should not contain medical information.

Does GINA Apply to the Administration of Vaccinations?

Finally, in addition to the ADA and Title VII guidance, EEOC made clear that Title II of the Genetic Information Nondiscrimination Act (GINA) is not implicated by either administering vaccinations to employees or requiring them to provide proof of vaccinations. Because the current vaccines do not interact with DNA, their administration does not violate GINA’s prohibitions on using, acquiring, or disclosing genetic information.


In sum, the EEOC’s acknowledgement that employers may implement COVID-19 vaccination programs provides long-awaited clarity, but employers considering these programs should ensure their policies and procedures do not implicate the ADA or Title VII. When deciding whether to implement mandatory COVID-19 vaccination programs, employers should also take into consideration the health risks associated with the vaccinations, even if vaccination programs are legally permitted. We will continue to monitor the situation as it rapidly evolves and report on developments.