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Brandon T. Glanz and Aidan Zielske<sup>1</sup>

Brandon T. Glanz and Aidan Zielske<sup>1</sup>

December 23, 2020

EEOC Unveils COVID-19 Vaccination Guidance for Employers

With the rollout of COVID-19 vaccines underway for segments of the population, the U.S. Equal Employment Opportunity Commission (EEOC) has published guidance for employers contemplating whether to require or encourage employee vaccinations as vaccinations become more widely available. Because employment is generally “at-will” in the United States, employers typically have the right to set conditions of employment, including conditions related to health and safety. Yet, recent polling suggests up to one-quarter of Americans are hesitant to take a COVID-19 vaccine.

Against this backdrop, the EEOC issued guidance last week2 to preemptively answer questions and assist employers and employees in determining rights and duties under federal civil rights laws, including the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII) as it relates to employer-mandated vaccinations for COVID-19. Though the guidance does not directly state that mandatory vaccination policies are lawful, it nonetheless lays out requirements for employers who seek to require vaccinations in their workplaces.

Company vaccination policies can implicate a number of federal EEO laws, including the ADA and Title VII. Employers should be mindful of the various laws potentially implicated by vaccination policies. They also should anticipate that the EEOC and other pertinent federal agencies (including OSHA) likely will issue additional guidance – or even revise current guidance – to reflect the evolving information related to COVID-19.

“Direct Threat” and Reasonable Accommodations under the ADA

Under the ADA, qualification standards for employment are permissible. This includes vaccination requirements in situations where the employer can 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.’”

To determine whether a “direct threat” may exist in a particular situation, the EEOC recommends that employers assess the following factors:

  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.

If an employer determines that an employee who cannot be vaccinated due to disability poses a direct threat, the employer can only exclude the employee from the workplace or take other action if there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk. However, this does not mean the employer may automatically terminate the worker.

The EEOC guidance contemplates that employers assess whether, for instance, the employee can accomplish his or her work remotely, whether unvaccinated employees can work under existing COVID protocols, such as masking and social distancing, or whether the employee should be offered leave from work under other laws or consistent with the company’s leave policy.

Religious-Based Accommodations Under Title VII

If an employee indicates that he or she is unable to receive a vaccine because of a sincerely held religious practice or belief, Title VII likely applies. Under Title VII, an employer must provide reasonable accommodation for religious beliefs, practices, or observances unless such accommodation would pose an undue hardship (i.e. it imposes more than a de minimis cost or burden on the employer).

The EEOC urges employers to ordinarily assume that an employee’s request in this realm is sincere. But, if an employer has “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.” Like the ADA, it is lawful for an employer to exclude an employee from the workplace if no reasonable accommodation is possible without undue hardship.

Like with the ADA, employers should undergo an individualized assessment on a case-by-case basis if confronted with a religious-based objection related to vaccinations.

Additional Considerations

The EEOC’s guidance does not resolve all questions employers may have, nor does it serve as a one-size-fits-all guidepost for all companies. A host of questions and factors bear relevance on the issue of mandating employee vaccinations, including:

  • Are you an employer whose work can easily be accomplished remotely?
  • Can you provide a safe workplace through measures such as mask mandates and social distance requirements?
  • Do you want to encourage, rather than mandate, vaccinations or use incentives to promote vaccinations?
  • Should you wait to require or encourage vaccines until the vaccine has full approval, rather than emergency use authorization?
  • Do you have procedures in place to appropriately respond to requests for accommodations?
  • Do you have existing leave policies that impact your analysis?

Questions? We’re Here to Help

HAWS-KM’s attorneys continue to monitor emerging issues related to the ongoing COVID-19 pandemic. We are available to assist you in these uncertain times, and we hope your families continue to stay safe and healthy.


1 Aidan Zielske, a law clerk at HAWS-KM, attends the University of Minnesota Law School (J.D. expected May 2021).
2 See What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (updated Dec. 16, 2020).



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