On May 28, 2021, The U.S. Equal Employment Opportunity Commission (EEOC) announced
updated and expanded guidelines concerning Covid-19 vaccination requirements and incentives
Employers can now require all employees entering the workplace to be vaccinated, so long as 2
requirements are met.
The qualification standard must be job-related and consistent with business necessity.
If a particular employee cannot meet such a safety-related qualification standard
because of a disability, the employer may not require compliance for the employee
unless it can demonstrate the individual would pose a “direct threat” to the health or
safety of the employee or others in the workplace.
To determine if an employee who is not vaccinated due to a disability poses a “direct threat” in the workplace, an employer first must make an individualized assessment of the employee’s
present ability to safely perform the essential functions of the job. The individualized
assessment should be based on a reasonable medical judgment on the most current medical
knowledge about COVID-19. Additionally, the assessment of direct threat should take account of the type of work environment, such as:
- Whether the employee works alone or with others or works inside or outside.
- Available ventilation.
- The frequency and duration of direct interaction the employee typically will have with
other employees and/or non-employees.
- The number of partially or fully vaccinated individuals already in the workplace.
- Whether other employees are wearing masks or undergoing routine screening testing.
- The space available for social distancing.
However, Title VII and the ADA may require an employer to provide reasonable
accommodations for employees who, because of a disability or a sincerely held religious belief,
practice, or observance, do not get vaccinated for COVID-19, unless providing an
accommodation would pose an undue hardship on the operation of the employer’s business.
Potential reasonable accommodations include:
- Requiring the employee to wear 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).
- Permitting telework if feasible; or
- Reassigning the employee to a vacant position in a different workspace.
The new guidelines also addressed employer-sponsored incentives for vaccinations.
Specifically, incentives may be provided so long as it is not tied to the employee receiving the
vaccine from the employer, or someone with whom the employer contracted. Simply providing
an incentive for an employee to voluntarily provide proof of vaccination he/she received from a
third party (i.e., a pharmacy or health clinic), is not a disability-related inquiry and therefore, the
ADA’s limits on incentives are not implicated. However, if the incentive is tied to a vaccine
provided by the employer or its agent then any incentive must not be so substantial as to be
Additionally, if employers choose to obtain vaccination information from their employees,
employers must keep vaccination information confidential pursuant to the ADA.
Finally, the new guidelines reminded employers “[a]s with any employment policy, employers
that have a vaccine requirement may need to respond to allegations that the requirement has a
disparate impact on—or disproportionately excludes—employees based on their race, color,
religion, sex, or national origin under Title VII (or age under the Age Discrimination in
Employment Act (40+)). 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 vaccination requirements.”
If you need some guidance or a sample vaccine policy please see our article on the subject.