EEOC Updates Technical Guidance on COVID-19 with Focus on Vaccine Records and Incentives

Morgan Lewis

Morgan Lewis

The US Equal Employment Opportunity Commission (EEOC) released a long-awaited update to its technical assistance guidance on COVID-19 and the Americans with Disabilities Act (ADA), the Rehabilitation Act, and other federal equal employment opportunity (EEO) laws on May 28, 2021. The document addresses frequent employer questions related to requiring vaccines for employees and providing incentives to employees to encourage vaccinations under the ADA, Title VII, and the Genetic Information Nondiscrimination Act (GINA).


The updated guidance provides the following:

  • The ADA, Title VII, and other federal employment nondiscrimination laws allow employers to require COVID-19 vaccines for employees entering a workplace as long as employers make reasonable accommodations in accordance with Title VII and the ADA for persons with disabilities, persons with sincere religious beliefs, and pregnant employees. Examples of accommodations for unvaccinated employees include face masks, social distancing, modified schedules, telework, or reassignment to a vacant position. The EEOC also suggests that employers monitor a policy’s impact to ensure that it does not disproportionately affect or exclude employees based on race, color, religion, sex, national origin, or age.
  • Employers may encourage employees and their family members to receive a vaccination without violating federal EEO laws by doing the following:
    • Offering incentives to employees who voluntarily participate in an incentive program and provide documentation or other confirmation that they and/or their family members received a vaccination from a third party.
    • Offering incentives to encourage employees to receive a vaccine administered by an employer or its agent, so long as the incentive is not “so substantial as to be coercive.”
    • Offering incentives to an employee’s family member to receive the vaccine without offering the employee an incentive, so long as the employer keeps all vaccination information it acquires confidential and does not provide it to managers, supervisors, or others who make employment decisions for employees.
    • Providing employees with information to educate them and their family members about the benefits of COVID-19 vaccination.
  • Employers may not offer an incentive to an employee in return for an employee’s family member receiving a vaccination by the employer or its agent (but vaccinations provided by an unaffiliated third party are permissible).
  • Employers must treat COVID-19 vaccination information as a confidential medical record. This means that under the ADA, vaccination information must be kept confidential and stored separately from the employee’s personnel files.
  • Employers that require employees to receive a COVID-19 vaccine from the employer or its agent must ensure that any screening questions asked during the process are job related and consistent with business necessity, in accordance with the ADA.
  • The guidance clarifies that current COVID-19 screening questions do not implicate GINA.


The EEOC’s update should reassure and help guide employers seeking to mandate or encourage employee vaccination in accordance with federal EEO laws. The new guidance broadly permits employers to do the following:

  • Mandate COVID-19 vaccinations for employees entering a workspace and require proof of vaccination without violating federal EEO laws, as long as the employer makes reasonable accommodations available to employees with disabilities, employees with religious beliefs, and pregnant employees.
  • Provide incentives to employees and their family members to receive a vaccine from a third party or submit proof of vaccination from a third party.
  • Provide incentives to employees to receive a vaccine administered by the employer or its agent so long as the incentive is not “coercive.” (The guidance does not, however, define what constitutes a coercive incentive.)

The guidance also includes helpful clarifications regarding the treatment of vaccine information received by the employer and the applicability of the ADA and GINA’s medical and family history provisions to vaccine screening questions.

Certain aspects of the law in this area remain complex though. For example, the types of accommodations an employer can provide to persons with disabilities, those with sincerely held religious beliefs, and pregnant workers will vary depending on the facts and circumstances in individual workplaces. In addition, whether an incentive offered to encourage vaccination by an employer or its agent is “coercive” will require close examination.

Finally, just because mandatory vaccinations do not violate federal EEO laws does not mean that an employer can ignore state and local laws that might be inconsistent or more restrictive. For example, the EEOC guidance does not exempt employers from complying with the new Montana state law that prohibits mandatory vaccination of employees. We recommend that employers continue to reach out to counsel for assistance in these areas.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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