Employment Law Update: EEOC’s Latest Guidance on COVID-19 Vaccines

By Janet A. Hendrick and Kim Beight Kelly

Covid vaccine imageOn May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) published 21 updated FAQs supplementing its guidance on workplace COVID-19 vaccination policies.  This represents the EEOC’s first comprehensive update of its guidance regarding COVID-19 since December 2020, prior to large-scale vaccine availability.  Notably, the EEOC prepared this update prior to the CDC’s May 13, 2021 announcement that fully vaccinated individuals need not wear masks or socially distance in certain scenarios.  Nonetheless, the EEOC’s update provides much-anticipated guidance for employers that require or encourage employees to be vaccinated.  Key takeaways include the following:

  • Reasonable Accommodation.  Employers may generally require workers who physically enter the workplace to receive a COVID-19 vaccination, but the employer must reasonably accommodate employees who are unable or unwilling to receive a vaccine because of a disability or sincerely held religious belief, practice, or observance unless those accommodations pose an undue hardship on the employer. Employees need not cite specific laws to engage the employer in an interactive process to explore accommodations, but must let the employer know that he or she requires an exemption.  As a best practice, employers wishing to institute a mandatory vaccination policy should prepare their managers to appropriately handle exemption requests.
  • Disparate Impact. Though an employer may require employee vaccinations, it must bear in mind that even a seemingly neutral policy may be discriminatory in practice toward protected groups of employees who face greater barriers to vaccination.  Employers should be careful to administer their policies in a non-discriminatory manner and when in doubt, vet its policy with counsel before rollout.
  • Incentives. Employers may offer incentives to employees who receive vaccines.  But available incentives differ based on who administers the vaccine.  If an employer merely requests proof of vaccination, then there is no disability-related inquiry under the Americans with Disability Act (ADA) and the request is allowable.  If the employer itself administers the vaccine or arranges for a third party to administer it, then the incentive must not be so substantial as to be coercive.  This is because the required pre-vaccine medical screening questions are prohibited under the ADA unless voluntary; if the incentive is coercively substantial, then the screening questions will not be considered voluntary.  Until the EEOC offers more detailed guidance on incentives, employers must choose incentives based on their own judgment and risk tolerance level.  The most conservative practice would be to either keep incentives very simple (e.g. cash less than $100) or to steer clear of administering vaccines itself.
  • Confidentiality. Employers must keep employee medical information confidential. While requesting proof of vaccination is not a medical inquiry, employee information–such as a copy of a vaccination card–is medical information that an employer must maintain confidentially as it would any other medical-related documentation (e.g. in a separate file with limited accessibility).

We will continue to post updates on new COVID-19-related guidance from the EEOC and other federal and state agencies on our website. For more information, consult with a Phillips Murrah labor and employment attorney.


Janet Hendrick portrait

Janet Hendrick is a Director and member of the Firm’s Labor and Employment Practice Group.

For more information on this alert and its impact on your business, please call 214.615.6391 or email me.

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