The first doses of the Covid-19 vaccine have arrived in Oregon and in states across the nation. In Oregon, Governor Brown has prioritized front-line health care workers and nursing home residents for receiving the first round of vaccines, but it is a matter of time before the vaccine becomes widely available. Many employers are wondering, once more vaccines are available, whether they can require their employees to become vaccinated once the vaccine becomes available to the general public. The EEOC recently issued guidance on employers’ ability to mandate vaccination of its employees. Although the EEOC’s guidance appears to presume that such a mandate would not necessarily violate EEO laws, it unfortunately raises a lot more questions than it answers.

The first question raised by the EEOC’s latest guidance is whether employers can mandate a vaccine that the FDA has authorized for emergency use. As of now, the only vaccines available have been approved through the FDA’s emergency use authorization, not through the ordinary approval process. That emergency use authorization requires the FDA to ensure that all recipients receive certain information about the vaccine when it is administered, typically in a patient information pamphlet. The FDA requires patients to be informed about the potential risks and benefits of the vaccine, and—more significantly for employers considering a vaccine mandate—that they have the option to refuse the vaccine. Given that, it is not clear how an employer could mandate a vaccine that the FDA has authorized only for emergency use.

Another issue is what effect other laws, such as the Americans with Disabilities Act or Title VII of the Civil Rights Act, will have on an employer’s ability to mandate vaccination for employees. The EEOC makes clear that employers have to allow accommodations for employees who indicate that they cannot be vaccinated because of a disability or a sincerely held religious beliefs. Additionally, because the CDC recommends that health care providers ask certain questions before administering the vaccine, an employer who requires that employees receive the vaccine from the employer or from a third-party contractor will be engaging in disability-related inquiries for purposes of the ADA and should proceed with caution. Those inquiries may also raise concerns regarding confidentiality of medical information for purposes of other laws, such as HIPAA or GINA.

There are multiple pitfalls for employers who wish to engage in mandatory vaccination. For now, because the vaccine is not widely available, employers can begin to encourage employees to get vaccinated once the vaccine becomes available. Employers should also continue monitoring for guidance from the EEOC, OSHA, and the CDC.