EEOC Updates Guidelines for Workplace COVID-19 Vaccination Policies | Miller Canfield

On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its technical assistance guidelines, What you need to know about COVID-19 and ADA, the Rehabilitation Act and other EEO laws, concerning COVID-19 vaccination in the context of employment. Below is a summary of the updated guidelines.


  • Under federal EEO laws, employers can require all employees entering the workplace to be vaccinated against COVID-19, subject to considerations of reasonable accommodation, disparate impact and disparate treatment.
  • If an employer or its agent offers voluntary vaccination to employees, the employer must comply with its obligations under federal non-discrimination in employment laws.
  • Employers can encourage employees and their families to get vaccinated without breaking EEO laws, including providing information to raise awareness of the benefits of vaccination and answering common questions and concerns (as outlined below).

Reasonable accommodation due to a disability

  • An employer can impose a qualification standard, such as requiring COVID-19 vaccination, if it is job-related and meets business requirements. If an employee cannot meet the standard (in this context, not being vaccinated), the employer may not require compliance unless they can demonstrate that the unvaccinated person would pose a direct threat to the patient. workplace. The employer must carry out an individualized assessment, taking into account many factors, to make this decision.
  • If the employer determines that the unvaccinated employee would pose a “direct threat” to the workplace, the employer must assess whether there is reasonable accommodation that would reduce or eliminate the threat.
  • As a good practice, employers should inform employees that requests for reasonable accommodation for a disability will be considered on an individualized basis when implementing a COVID-19 vaccination policy requiring confirmation of the vaccination.
  • An employee who is not vaccinated against COVID-19 due to a disability must inform the employer that they need an exemption from the vaccine requirement or that they need an accommodation in the workplace. work, but the employee does not need to refer specifically to the ADA or use the phrase “reasonable accommodation”. Employers should train managers and supervisors responsible for implementing the immunization policy to recognize a request for accommodation and provide them with information on how to deal with requests for accommodation.
  • When receiving a request for reasonable accommodation due to a disability, employers should engage in a flexible and interactive process to gather supporting medical documents regarding the employee’s disability and identify options for accommodation. workplace that do not impose undue hardship on the employer. Employers should consider all options before refusing an accommodation request.
  • If a fully vaccinated employee requests accommodation for an underlying disability because of a continuing concern that he or she faces an increased risk of serious illness from COVID-19 infection, the employer should process the request accordingly. to applicable ADA standards, including by engaging in an interactive process.

Disability-related medical investigations and examinations

  • If an employer requires their employees to be vaccinated against COVID-19 from the employer or their agent, ADA restrictions on an employer conducting disability-related investigations or medical examinations of their employee apply. pre-vaccination screening questions. Thus, they must be job related and conform to the needs of the company and, in turn, the employer must show that employees who do not answer questions and cannot get vaccinated will pose a direct threat to work place. However, if an employer offers to vaccinate their employee on a voluntary basis, the employer can ask disability-related screening questions without having to meet this standard.
  • The act of administering the vaccine by the employer or its agent is not a “medical examination” under the ADA.
  • This is not a “disability survey” for an employer to inquire about or request confirmation of vaccination from a third party.
  • An employee’s COVID-19 vaccination information is medical information that must be kept confidential and separate from the employee’s personal records under the American with Disabilities Act (ADA).

Reasonable accommodation because of religious beliefs

  • While an employer should normally assume that an employee’s request for religious accommodation is based on a sincere religious belief, practice or observance, employers may request additional supporting information if they have available. an objective factual basis for questioning the religious nature or sincerity of a particular belief.
  • An employer should carefully consider all possible reasonable accommodations, including telecommuting and reassignment.
  • “Undue hardship” under Title VII is easier to demonstrate than the ADA’s undue hardship standards and requires minimal cost or burden to the employer. In determining whether the accommodation would impose undue hardship on the employer, employers should take into account several considerations, such as the portion of the workforce vaccinated and the extent of employee contact with others.
  • Ultimately, if an accommodation cannot be provided, employers should determine if the employee has other rights under EEO laws or other federal, state and local regulations before taking employment action. unfavorable against the unvaccinated employee.
  • As a best practice, employers implementing a COVID-19 vaccination policy and requiring confirmation of vaccination should advise employees that requests for reasonable accommodation for a religious belief, practice or observance will be reviewed on an individualized basis.

Considerations for Pregnant Employees

  • If an employee seeks to be exempt from a vaccine requirement due to pregnancy, the employer must ensure that a pregnant employee is not discriminated against against other similar employees in their workplace. ability or inability to work. If an employer has made changes to employees whose ability or inability to work is similar to that of the pregnant employee, the pregnant employee may be entitled to those changes, including telecommuting, schedule changes , changes of assignment and leave.
  • Employers should train supervisors, managers and human resources staff to handle exemption requests from pregnant employees to avoid discrimination complaints.

Genetic Information and Vaccines Non-Discrimination Act

  • GINA Title II is not involved if an employer requires an employee to receive a COVID-19 vaccine administered by the employer or its agent, unless the pre-vaccination medical screening questions relate to the genetic information of the employee. the employee (for example, family medical history).
  • GINA Title II is also not involved if an employer requires employees to provide confirmation of COVID-19 vaccination from a healthcare provider.

Vaccine incentives

  • Under the ADA and GINA, an employer can offer an incentive for employees to voluntarily provide confirmation that they or their family members have received COVID-19 vaccines from a health care provider.
  • Under the ADA, an employer can offer an incentive for employees to voluntarily receive a vaccination administered by the employer or its agent if the incentive is not so great as to be coercive.
  • Under the GINA, an employer can offer an incentive to employees to voluntarily receive a vaccine administered by the employer or its agent if the employer does not acquire genetic information during the administration of the vaccines.
  • Under the GINA, an employer can do not offer an inducement to an employee in exchange for the vaccination of an employee’s family member by the employer or its agent, but may offer an employee’s family member the opportunity to be vaccinated without offer the employee an incentive as long as the employer takes certain steps to comply with GINA.

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