As the Covid-19 vaccine starts to become available to the general public, it is important for employer’s to be aware of vaccination requirement regulations.

On December 16, 2020, EEOC issued updated FAQs on its COVID-19 page regarding employer vaccination requirements.


Here’s what you need to know:

  • EEOC acknowledges that employers may require employees to provide proof of vaccination obtained from a third party, that employers may self-administer vaccinations, or that employers may contract with a third party to administer vaccinations. *Note this would be a mandatory subject of bargaining for union employers.
  • To adequately document the requirement for ADA purposes, the employer should have a written policy that specifies it is a qualification standard for employment that “an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”
  • If employer-administered or requiring a designated third-party, the employer and third-party must comply with ADA on pre-vaccination questions.
  • If answering pre-vaccination questions is mandatory, employer must “have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.”
  • Allowing an employee to obtain a vaccination from the provider of his/her choice would avoid this requirement.

Reasonable Accommodations Based on Health Factor

Similar to EEOC’s guidance regarding employer accommodations of employees who could not use PPE (masks, etc.) due to a health condition (disability or pregnancy) or religious objection, employers must engage in a good faith interactive discussion of reasonable accommodation

  • “Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.”
  • Only if there is a direct threat that cannot be reduced by a reasonable accommodation may an employer exclude an employee from the worksite. Note that “exclusion” is not synonymous with “termination.”

Reasonable Accommodations Based on Religion

  • Requires that employee put employer on notice of a sincerely held religious belief, practice, or observance that opposes the vaccine.
  • Do not let your decision be affected by what you think is “sincere” or “legitimate” and instead “assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.”
  • Employers may deny the request for religious accommodation by showing that the request causes an undue hardship, defined as “more than a the minimums cost or burden on the employer” and may exclude the employee from work on this basis if no other reasonable accommodation is available. **Note that “exclusion” is not synonymous with “termination.”

Approved Status of Vaccines

  • The approved status of the vaccine and disclosures that go with it may result in some conflict with employer vaccine requirements. For example, the vaccines currently have FDA “emergency use authorization” or EUA, which includes disclosures among which is “that they have the option to accept or refuse the vaccine.”
  • Some commenters have said that this FDA disclosure would conflict with EEOC’s authorization that an employer may require employees to get vaccinated.
  • In the absence of further guidance, it appears that EEOC’s guidance assumes employers require a “COVID-19 vaccine that has been approved or authorized by the Food and Drug Administration (FDA)” and that this approval or authorization necessarily includes EUA status.

Our team is here as a resource to you during these uncertain times. If you have any questions about how the Covid-19 vaccine will impact your business or your insurance coverage, please contact our employee benefits department.