New EEOC Guidance on Mandatory Vaccination Policies, Accommodations, Confidentiality, and Incentive Programs

On May 28, 2021, the EEOC updated its guidance regarding a number of frequently asked questions pertaining to the limits and requirements of employer-mandated vaccinations, reasonable accommodations for employees refusing to vaccinate, rules relating to policies incentivizing employees and their family members getting vaccinated, and confidentiality of employer-acquired COVID-19 vaccination information.   Below are some of the key takeaways to be aware of as operations begin to reopen.

Mandatory Vaccination Policies

According to the EEOC, federal employment laws do not categorically prohibit an employer from requiring all of its employees who physically enter the workplace to be vaccinated for COVID-19, so long as the requirement is job-related and consistent with business necessity (including enforcing a safety-related standard requiring COVID-19 vaccination). 

Of course, such a policy must also comply with all other applicable laws, such as the Americans with Disabilities Act (ADA), Title VII, and other federal employment nondiscrimination laws. This is where the proper structuring and enforcement of such policies becomes important, and the EEOC has provided important updated guidance to help employers navigate situations when their employees do not – or will not – get vaccinated due to a characteristic protected under federal law.

Disabilities Precluding Vaccination – “Direct Threat” Assessment

If an employee cannot satisfy an employer’s mandatory vaccination requirement because of a disability, the employer cannot require the disabled employee’s compliance unless it can demonstrate that the unvaccinated employee would pose a “direct threat” to the health or safety of themselves or others in the workplace. 

Under Title VII, a “direct threat” is a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation. One may think that this is a simple burden to meet given the well-known significant health risks associated with a COVID-19 infection, but it actually requires consideration of a number of factors that many employers may have difficulty showing. 

Specifically, whether a “direct threat” exists must be determined from an individualized assessment of the employee’s present ability to safely perform the essential functions of their job, focusing on the following factors: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. This “direct threat” determination must also be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19, including geographically unique statistics such as the level of community spread at the time of the assessment, statements from the CDC, and the employee’s health care provider (with the employee’s consent). 

The “direct threat” determination must also take account of the type of work environment, such as: whether the employee works alone or with others or works inside or outside; the available ventilation; the frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees; the number of partially or fully vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing.

As discussed below, even if a “direct threat” exists, this is not the end of the process; a reasonable accommodation analysis must also be undertaken.

Reasonable Accommodation Assessment

If an employer determines that an employee who (because of a disability) cannot be vaccinated would pose a direct threat to themselves or others in the workplace, the employer must also determine whether it can provide a reasonable accommodation that would eliminate or sufficiently reduce the direct threat. 

Importantly, this same reasonable accommodation process is also triggered when an employer learns that an employee cannot be vaccinated because of a sincerely held religious belief, practice, or observance, or because of pregnancy.

Potential reasonable accommodations could include requiring the employee to wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or accept a reassignment. Employees who are not vaccinated because of pregnancy may also be entitled (under Title VII) to adjustments to keep working if the employer makes modifications or exceptions for other employees. 

Watch Out for Disparate Treatment/Impact Discrimination

The EEOC’s guidance warns employers to be careful not to apply vaccination requirements in a manner that violates federal nondiscrimination laws, such as in a way that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation and gender identity), national origin, age, or genetic information (absent a legitimate non-discriminatory reason) or in a manner that disparate impact on (i.e., disproportionately affects or excludes) particular individuals or demographic groups which face greater barriers to receiving a COVID-19 vaccination than others. Policies that target or emphasize people in a certain age range, or who may be more or less vulnerable due to existing medical conditions or disabilities, should be carefully vetted to make sure they are not creating liability for disparate treatment or impact discrimination.

Inquiring Into or Requesting Confirmation of Vaccination

According to the EEOC, asking an employee about or requesting documentation or other confirmation that the employee obtained the COVID-19 vaccine from a third party in the community, such as a pharmacy, personal health care provider, or public clinic does not constitute “disability-related inquiry” and is permissible for purposes of ensuring compliance with an otherwise lawful vaccination policy.

Employee Incentives to Encourage Vaccination

The EEOC instructs that, under certain circumstances, it is lawful under the ADA for employers to offer incentives (both rewards and penalties) to employees under a mandatory COVID-19 vaccination policy. However, the incentive must not be coercive. 

For example, when used to encourage an employee to voluntarily receive a vaccination administered by the employer or its agent, the EEOC warns that a very large incentive could make employees feel pressured to disclose protected medical information since vaccinations require employees to answer pre-vaccination disability-related screening questions. In such circumstances, the incentive could go too far and violate of federal law. 

Interestingly, the EEOC noted that this limitation on large incentives does not apply where an employer offers the incentive to employees to voluntarily provide documentation or other confirmation that they received a COVID-19 vaccination on their own from a third-party provider that is not their employer or an agent of their employer, as the employee would not be compelled to disclose medically-protected information in such circumstances.

Similarly, an employer does not violate the Genetic Information Nondiscrimination Act (GINA) by offering an incentive to employees (1) to provide documentation or other confirmation that they or their family members received a vaccination from their own health care provider, such as a doctor, pharmacy, health agency, or another health care provider in the community; and (2) in exchange for the employee getting vaccinated by the employer or its agent, as long as an employer does not acquire genetic information while administering the vaccines. 

An employer may also offer an employee’s family member an opportunity to be vaccinated as long as there is no incentive offered to the employee. In other words, 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, as this violates GINA.


According to the EEOC, information about an employee’s COVID-19 vaccination must be treated as confidential medical information under the ADA, regardless of where the employee gets the vaccination (whether from the employer or elsewhere) and should be stored separately from the employee’s personnel files under the ADA.

What Should Employers Do Now?

  • Best practices: Before instituting any mandatory vaccination policy, employers should consult with counsel, and provide managers, supervisors, and those responsible for implementing the policy with clear information about how to handle accommodation requests related to the policy.
  • Keep matters confidential: The EEOC views the fact that an employee is receiving a reasonable accommodation, as well as employee COVID-19 vaccination medical information, as “confidential” under the ADA, so staff should be trained and systems should be in place to make sure this information is not improperly disclosed.
  • Federal v. State: Remember that the EEOC’s guidance is primarily useful for complying with Federal laws, and that State laws and agencies may have additional and/or more stringent requirements or prohibitions relating to mandatory vaccination policies than noted above.

If you have any questions about vaccination policies, compliance with State or Federal nondiscrimination laws, or any other issue relating to employment law, please contact one of our attorneys:

Shareholders Associates
Eric C. Bellafronto Ernest M. Malaspina Sean Bothamley
Karin M. Cogbill Richard M. Noack Jonathan Heller
Jennifer Coleman Daniel F. Pyne III Shirley Jackson
Michael Manoukian
Elaisha Nandrajog

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