Poyner Spruill LLP

Poyner Spruill LLP

On May 28, 2021, the EEOC released updated guidance regarding COVID-19 vaccinations and other commonly asked questions related to return to work. The important employer takeaways include:

Mandatory workplace vaccination

  • Federal EEO laws do not prevent an employer from requiring all employees who physically enter the workplace to be vaccinated, as long as employers are following the reasonable accommodation requirements of Title VII and the ADA. Similar to other employment policies, employers requiring employee vaccination may have to respond to allegations that the requirement has a disparate impact on employees based on race, color, religion, sex, or national origin under Title VII.
  • If an employer requires an employee to be vaccinated by the employer or its agent, the employer should be able to justify pre-vaccination screening questions as “job related and consistent with business necessity” under the ADA. The act of administering a vaccine is not a “medical examination” under the ADA; however, pre-vaccination screening questions are likely to elicit information about a disability.
  • Requiring an employee to get a vaccination administered by the employer or its agent would not implicate GINA unless the pre-vaccination medical screening questions include those about the employee’s genetic information, including asking about the employee’s family medical history. The pre-vaccination screening questions for the three COVID-19 vaccines currently available do not ask about genetic information.

Voluntary workplace vaccination

  • If the employer’s vaccination program is voluntary and an employee chooses to get vaccinated, an employer will not have to show that pre-screening questions are “job-related and consistent with business necessity.”
  • If an employer offers voluntary vaccination only to certain groups of employees, the employer must comply with federal employment nondiscrimination laws and not exclude groups based on a protected class.
  • Employers may offer incentives to employees to voluntarily provide documentation or confirmation that they received a vaccination on their own. Employers must keep this information confidential.

Accommodation considerations

  • If an employer requires COVID-19 vaccinations for employees entering the workplace and an employee cannot get vaccinated due to a disability, the employee must let the employer know that he or she needs an exemption from the requirement. Managers and supervisors communicating with employees about the policy should be trained in how to recognize an accommodation request from an employee with a disability.
  • Reasonable accommodations for employees who do not get vaccinated due to a disability, religious beliefs, or pregnancy include, but are not limited to, wearing a face mask, working at a social distance from coworkers and non-employees, working a modified shift, getting periodic tests for COVID-19, being given the opportunity to telework, or accepting reassignment.
  • If there is an employee who is fully vaccinated for COVID-19 but requests an accommodation for an underlying disability because of concern that he or she is still at high risk of severe illness due to COVID-19, the employer must engage in the interactive process even though the employee is fully vaccinated.
  • If an employee chooses not to get vaccinated due to pregnancy, the employee may be entitled to job modifications, including but not limited to telework, changes to work schedules or assignments, and leave. Employers should make sure supervisors, managers, and HR personnel know how to handle these requests to avoid disparate treatment in violation of Title VII.


  • Requesting documentation or proof of vaccination from employees is not considered a disability-related inquiry under the ADA. However, information about an employee’s COVID-19 vaccination is still considered confidential medical information under the ADA, so an employee’s vaccination status must be kept confidential.  This means employers cannot tell their employees if specific co-workers have been vaccinated.
  • Under the ADA, it is unlawful for an employer to disclose that an employee is receiving a reasonable accommodation or to retaliate against an employee for requesting an accommodation.  This means an employer should not tell an employee’s co-workers that the employee has been exempted from any mandatory vaccine requirement as an accommodation for a disability.

Incentives for vaccination

  • Employers may offer incentives to employees for voluntarily receiving a vaccination administered by the employer or its agent, as long as the incentive (including both reward and penalty) is not so substantial as to be coercive.
  • An employer may not offer an incentive to an employee in return for an employee’s family member getting vaccinated by the employer or its agent. However, an employer may offer an employee’s family member an opportunity to be vaccinated without providing an incentive.

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