EEOC Update on Workplace Practices Related to COVID-19 Vaccinations | Gray reed

The EEOC recently updated its advice related to the intersection of employment discrimination laws and COVID-19 vaccinations. In addition to further defining the scope of legal vaccination incentives, the update clarifies that, subject to certain caveats, employers can: (1) impose COVID-19 vaccines on employees and (2) request employees to disclose their immunization status. The update provides employers with a useful context to assess workplace policies related to COVID-19. At the same time, he calls for continuing to examine the impact of COVID-19 vaccinations on safety and compliance at work.

Employers can require employees to be vaccinated.

Affirming our preliminary analysis, the EEOC now explicitly states that federal employment laws allow an employer to require that all employees physically entering the workplace be vaccinated against COVID-19. However, employers must still comply with the reasonable accommodation provisions of applicable laws, namely the Americans with Disabilities Act (ADA) and Title VII.

Employers should be aware of this fact that some individuals or groups face greater barriers to receiving a COVID-19 vaccine and are more likely to be negatively affected by a vaccine requirement. Additionally, employers should pay close attention to state and local laws, which may place additional restrictions on workplace vaccination requirements.

Employers must reasonably accommodate employees who cannot or do not want to be vaccinated because of their disability or religion.

Under the ADA, employers must accommodate employees with a disability that prevents them from getting a COVID-19 vaccine, unless the accommodation poses undue hardship. An employer cannot require compliance from such an employee unless it can demonstrate that the unvaccinated employee would pose a direct threat to the health and safety of the employee or others in the workplace.

A “direct threat” determination requires employers to conduct an individualized assessment. The update provides real factors that employers should take into account in making such a decision: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the probability that a particular harm will occur; (4) the imminence of the potential harm; and (5) the type of work environment. In assessing the type of work environment, employers may consider factors such as: (1) whether the employee is working alone or with others; (2) whether the employee works indoors or outdoors; (3) ventilation available; (4) the frequency and duration of direct interactions that the employee generally has with other employees and / or non-employees; (5) the number of partially vaccinated people in the workplace; (6) whether other employees wear masks or undergo routine screening tests; and (7) the space available for social distancing.

The determination should be based on “reasonable medical judgment based on the most recent medical knowledge on COVID-19”, which may include: (1) the level of threat to the community at the time of the assessment; (2) statements from the CDC; (3) the employee’s health care provider, with the employee’s consent.

If the assessment shows that an unvaccinated disabled employee poses a direct threat to themselves or to others, employers should consider whether reasonable accommodation, absent undue hardship, would reduce or eliminate that threat. Employers can rely on the CDC’s recommendations to decide if there is an effective accommodation available that would not pose undue hardship. With respect to potential reasonable accommodations, the EEOC offers the following non-exclusive examples:

[R]require the employee to wear a mask, work staggered shifts, make changes to the work environment (such as improving ventilation systems or limiting contact with other employees and non-employees ), to allow teleworking if possible or to reassign the employee to a vacant position in a different workspace.

Under Title VII, employers must provide employees, who genuinely have a religious belief, practice or observance that prevents them from being vaccinated against COVID-19, reasonable accommodation, unless the accommodation poses undue hardship. A request for religious accommodation from an employee who wishes to wait for an alternative version or a specific brand of the COVID-19 vaccine to be available must be processed according to the same standards applicable to other accommodation requests set out above. Employers must engage in an interactive process to find reasonable accommodation and should carefully consider all possibilities, including telecommuting and reassignment. Employers can rely on the CDC’s recommendations to decide if there is reasonable accommodation available.

The definition of religion in Title VII is broad and the EEOC suggests that employers “should normally assume that an employee’s request for religious accommodation is based on sincere religious belief, practice or observance. However, if an employee requests religious accommodation and an employer is aware of facts which provide an objective basis for questioning the religious nature or sincerity of a particular belief, practice or observance, the employer would be justified in doing so. request additional support information. “

Employers should be prepared to process exemption requests from employees unable or refusing to be vaccinated due to pregnancy.

Employers can require pregnant employees to be vaccinated. Under Title VII, as amended by the Pregnancy Discrimination Act, pregnant employees can request employment adjustments or request exemptions from a COVID-19 vaccination requirement. A pregnant employee may also be entitled to reasonable accommodation under the ADA. Employers must ensure that a pregnant employee is not discriminated against compared to other employees with a similar ability or incapacity to work. This means that pregnant employees who cannot or do not want to be vaccinated may be entitled to job modifications (including telecommuting), changes in work schedules or assignments and time off, in to the extent that such modifications are planned for other employees in the same situation.

Employers should reasonably accommodate fully immunized employees at increased risk.

The update introduces a new type of accommodation request involving an employee who is fully vaccinated against COVID-19 but requests accommodation due to continued concern of increased risk of serious illness from COVID infection – 19. For example, fully vaccinated people who are immunocompromised may need reasonable accommodations because the vaccine may not offer them the same level of protection as others.

These requests should be handled in accordance with applicable ADA standards, when an employer engages in an interactive process to determine whether there is a reasonable need for accommodation related to the disability. “This process typically includes seeking information from the employee’s health care provider with the employee’s consent as to why an accommodation is needed.” If there is a demonstrated need, employers should explore potential reasonable accommodations that are available in the absence of undue hardship.

Employers must keep employee COVID-19 vaccination information confidential.

The EEOC has previously indicated that an employer’s request for employee self-disclosure of immunization status or documentation or other confirmation of immunization status from a third party is not a medical examination or investigation related to the vaccine. handicap. Therefore, such a request does not contravene the ADA or the Genetic Information Non-Discrimination Act (GINA).

Despite this position, the update makes it clear that the confidentiality requirement for employee medical information found in the ADA applies to documentation or other confirmation of COVID-19 vaccination. Employers should keep this in mind when faced with requests for disclosure of employee immunization status from co-workers, customers or other third parties. While federal employment laws do not prevent employers from asking or requiring employees to provide documents or other vaccination confirmation, this new directive confirms that this information should be kept confidential and should be stored separately from employee personal files.

Keep in mind that information collected by employers who administer vaccines to employees may be subject to additional confidentiality requirements under the law. Employers who administer vaccines (or who contract with third parties to administer vaccines) to employees should consult with a lawyer to determine if they may be subject to additional federal or state legal obligations.


Employers should continue to refer to CDC Protocols and EEOC guidelines for determining reasonable accommodations to provide a safe and healthy workplace for all employees. As always, employers should consider seeking advice before implementing a vaccination policy or excluding an employee from the workplace due to a refusal to be vaccinated.

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