Heyl Royster

Combatting COVID-19: Enforcing Mandatory Vaccinations in the Workplace

december 22, 2020

As 2020 nears its end, we remain hopeful that 2021 will bring a return to normalcy in the workplace. This year has certainly presented questions and challenges for Americans as we all felt the impact of the coronavirus pandemic. With the recent news that pharmaceutical companies Moderna and Pfizer have developed highly-effective COVID-19 vaccines that are now being distributed to Americans across the nation, many in the Midwest are wishing for some positive momentum as the region prepares itself to ring in the new year.

Even with the positive news, the development and distribution of the COVID-19 vaccines bring questions and challenges, several of which are pertinent to employers. One such question is whether employers may require and enforce mandatory COVID-19 vaccinations before entering the workplace.

The U.S. Equal Employment Opportunity Commission (EEOC) recently issued guidance to address this question. The guidance can be found here. This guidance essentially provides that an employer may require employees to obtain a COVID-19 vaccination or provide proof of a COVID-19 vaccination, with the exception of special circumstances. Employers who wish to adopt mandatory vaccination policies may be obligated to provide exemptions or accommodations to employees with religious objections to vaccines, pregnant workers, and employees with disabilities that may prevent them from obtaining a vaccination. Employers should also be mindful as to the types of questions that they can ask employees about their health and vaccination status and how they use the information obtained in response to those questions.

As with prior vaccinations, such as those for the influenza and H1N1 viruses, the EEOC considered the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and Title II of the Genetic Information Nondiscrimination Act (GINA) in issuing its COVID-19 guidance.

Americans With Disabilities Act (ADA)

Generally, the ADA prohibits an employer from requiring a medical examination or making inquiries to elicit information about an employee’s disability unless the medical examination or inquiries are “job-related and consistent with a business necessity.” Any COVID-19 vaccinations that have been approved by the Food and Drug Administration (FDA) and administered to an employee by an employer or third party will not be considered “medical examinations” for purposes of the ADA. The EEOC reasoned that if a vaccine is administered by an employer or third party to an employee for protection against contracting COVID-19, “the employer is not seeking information about an individual’s impairment or current health status, and therefore, it is not a medical examination.”

Pre-screening vaccination questions may be subject to the ADA standards for disability-related inquiries because these inquiries are likely to elicit information from employees about a disability. Thus, employers will need to show that any pre-screening vaccination questions are “job-related and consistent with a business necessity.” To meet this standard, an employer will need to have a reasonable belief, based on objective evidence, that an employee who does not answer the pre-screening vaccination questions and does not receive a COVID-19 vaccination will pose a direct threat to the health or safety of her/himself and/or others.

It should be noted that the “job-related and consistent with a business necessity” standard for ADA pre-screening vaccination questions does not apply in two circumstances: (1) if an employer offers vaccinations to employees on a voluntary basis and (2) if an employee receives an employer-required vaccination from a third party who does not have a contractual relationship with the employer (e.g., a pharmacy or health care provider). In addition, it is not considered a disability-related inquiry for an employee to request a proof of receipt for a COVID-19 vaccination because the request for proof of a receipt itself does not elicit information about a disability. Rather, the standard applies when an employer proceeds to ask subsequent questions, such as why an employee did not receive a COVID-19 vaccination.

In the event that an employee claims he or she is unable to receive a COVID-19 vaccination due to a disability, an employer must provide evidence that an unvaccinated employee will pose a direct threat due to “a significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” To determine whether a direct threat exists, employers should conduct an individualized assessment based on the following four 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 harm. If the direct threat that an unvaccinated employee will expose others to COVID-19 at the workplace is determined to exist after these factors have been assessed, the employer cannot exclude the employee from the workplace or take any other action unless a reasonable accommodation cannot be provided that would eliminate or reduce the direct threat, absent undue hardship to the employer. Even if it would be lawful to exclude an employee from the workplace under either the ADA or Title VII, an employer should consider whether any other rights apply to the employee at issue.

Title VII of the Civil Rights Act of 1964 (Title VII)

Title VII may apply when an employer is put on notice that an employee’s sincerely held religious beliefs, practices, or observances impacts his or her ability or willingness to receive a vaccine. In those cases, the employer must provide a reasonable accommodation for the employee unless it would pose an undue hardship. Under Title VII, “undue hardship” has been defined as “having more than a de minimis cost or burden on the employer.” The accommodation must also be based on the employee’s sincerely held religious belief.

Title II of the Genetic Information Nondiscrimination Act (GINA)

A COVID-19 vaccination does not implicate Title II of GINA because the vaccinations do not involve the use of genetic information to make employment decisions or the acquisitions or disclosure of “genetic information” as defined by GINA. At present, it is not clear what, if any, pre-screening vaccination questions relate to GINA.


While the EEOC’s COVID-19 guidance does not expressly state that mandatory vaccine polices are unlawful, employers should be cautious in requesting medical information to avoid the violation of the ADA and Title VII. Regardless, employers should utilize the best safe practices in the workplace and adhere to the guidance outlined by the Center for Disease Control (CDC) (https://www.cdc.gov/coronavirus/2019-ncov/communication/guidance.html) and EEOC (https://www.eeoc.gov/coronavirus) guidelines for concerns regarding proper safety protocols during the coronavirus pandemic.

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