EEOC Issues New COVID-19 Vaccination Guidance for Employers

By Patrick Owens
Published June 7, 2021

EEOC COVID-19 Vaccination Guidance

When it comes to requiring vaccines of employees, there are several compliance issues to consider.

New EEOC COVID-19 Vaccination Guidance

The U.S. Equal Employment Opportunity Commission (EEOC) recently posted updated technical assistance regarding COVID-19 and the Americans with Disabilities Act (ADA), the Rehabilitation Act, and other EEO laws.

The overall takeaway regarding vaccination status from the EEOC updated FAQs section is that employers can request proof of vaccination. Plus, employers may offer incentives to encourage workers to get a vaccine and provide proof of vaccination. But there are limitations.

Below are some of the key takeaways from the EEOC guidance, issued March 28.

Requiring Vaccinations

When it comes to requiring vaccines of employees, there are several compliance issues to consider, including:

  • Employers must comply with the reasonable accommodations provision of the ADA, Title VII of the Civil Rights Act of 1964, and other EEO considerations
  • Employers are not prevented from offering incentives to voluntarily provide vaccination documentation. If employers choose to obtain vaccine information, it must be held confidential
  • Any incentives offered cannot be considered coercive
  • Employers may provide educational information on COVID-19 vaccines and help to increase awareness about the benefits of vaccination

In addition, employers should ensure they are in full compliance with the Genetic Information Nondisclosure Act (GINA) and Title VII.

Also note that the new EEOC guidance is not definitive legal advice or a blanket answer for how companies should handle employee vaccines.

Confidential Vaccination Records

All employee medical information must be kept confidential.

However, the EEOC guidance concludes that an employer requesting proof of vaccination is not technically a medical inquiry. Still, related information provided by an employee — such as a copy of a CDC vaccination card — must be held fully confidential.

Mandatory Employee Vaccination

While mandatory vaccination of employees is permissible, it can be problematic.

A seemingly neutral policy on its face may not be in practice. Officials urge employers to consider age, race, national origin, sex, relation, or any other protected category. Employers should weigh these factors, as certain demographics may have a more difficult time getting a COVID-19 vaccine than others.

Vaccine Incentives

In the EEOC guidance, whether an employer is providing vaccine access themselves, or if they are contracting with a third party to administer the vaccines, any incentive they offer with the vaccine cannot be considered coercive.

Employers should also avoid any situations with third party vaccine providers that might create an “agent relationship” between the employer and vaccine provider. The basis for this rule is that the vaccines require prescreening medical questions that are prohibited under the ADA unless the answers to those questions are considered voluntary. Additional EEOC guidance:

  • Any incentive should not be considered overly substantial, as a large incentive could be construed as pressuring employees to disclose protected medical information
  • There is currently no means testing for what might be considered coercive, so it may be wise to tread lightly
  • Keep any incentives limited to small bonuses or gift cards, if offered

Reasonable Accommodations

While employers may mandate vaccinations for employers who enter a physical worksite without violating EEOC, ADA, GINA, and Title VII, they still must deploy reasonable accommodations for workers who refused vaccines for religious reasons or more general disability related reasons, unless the accommodations impose an undue hardship on business operations.

The new EEOC guidance also addresses pregnancy related concerns. A pregnant employee may be entitled to certain accommodations — including leave, telework, and modified schedules — to the same degree that are provided to other employees who have similar needs in regard to their inability/ability to work.

Protected Status?

As explored in a previous Employment Law News blog from May 27, 2021, several states are considering bills that would make an employee’s vaccination status a protected category.

Montana clarified protected status with legislation passed May 7, 2021. Other states may also pass similar legislation. Under Montana’s law, employers may not discriminate against, refuse to employ, or bar an individual from employment based on whether the individual has been vaccinated or holds an immunity passport.

Employers should monitor these bills to stay up to date with jurisdictional protected status laws.


In most cases, employers can mandate vaccines for those workers who physically enter a workplace.

However, there are several limitations to a blanket mandate under the EEOC and other federal regulations. Additionally, should employers mandate a vaccine policy, they should be careful with any incentives, and treat any employee records confidentially.

This Employment Law News blog is intended for market awareness only, it is not to be used for legal advice or counsel.

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