EEOC Updates Guidance for Employers on COVID-19 Vaccine Questions

by Jennifer A. Tiedeken on November 09, 2021 under Firm News

Employers around the country are mandating that employees get the COVID-19 vaccine as a condition of their employment. Both employers and employees have questions about whether such vaccine mandates are legal, and some employees have brought court challenges to such mandates. While the law on this issue is evolving daily, the current response from the EEOC, as further confirmed by their October 2021 updates, is a resounding yes—employers can mandate vaccines, so long as all proper legal considerations are taken into account. This article provides a general overview of the current state of the law, and the legal considerations that might qualify someone as exempt from a vaccine mandate.

Can Employers Require All Employees to Receive the COVID-19 Vaccine?

Yes. According to the EEOC, employers can require all employees to get the COVID-19 vaccination as a condition of their continued employment. A Memorandum Opinion from the U.S. Department of Justice, Office of Legal Counsel released on July 6, 2021 likewise concludes that public and private entities are not prohibited from having vaccination requirements, including COVID-19 vaccines.[1] As discussed below, the only legal limitations imposed on an employer are equal employment opportunity laws at the federal and state level, where a workplace accommodation is legally required. In addition, an employer’s decision to require its employees to get vaccinated must not be applied 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.

What if an Employee has a Medical Condition?

Employees who believe they have a medical condition preventing them from getting the COVID-19 vaccine can apply to its employer for an exemption from its vaccine mandate under the Americans with Disabilities Act (“ADA”) and similar state law (in Colorado, the Colorado Anti-Discrimination Act (“CADA”) applies). Most employers must comply with either or both the ADA and CADA. Employers should view an employee’s request for an exemption from a COVID-19 vaccine mandate based on a medical condition as a request for a reasonable accommodation. Once the request is made, an employer must make a finding as to whether the employee’s claimed medical condition qualifies as a disability under the ADA/CADA and, if so, whether the employee’s medical provider has certified that the COVID-19 vaccination would negatively interfere with the employee’s claimed medical condition.

If an employee satisfies both of these requirements, an employer can only require the vaccine for that employee if it determines that the employee would pose a “direct threat” to the health or safety of the employee or others in the workplace. In determining whether the employee poses a “direct threat,” an employer should consider 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.

If the employer determines that an employee poses a “direct threat,” that does not end the inquiry. The employer then must consider whether there are any reasonable accommodations, such as work-from-home, that would alleviate the “direct threat” concern. Each request should be considered on an individualized basis, and reasonable accommodations should be considered for each specific circumstance. Reasonable requests for accommodation may only be denied if such requests would impose undue hardship on the employer.

What if an Employee’s Religious Belief Conflicts with Getting a COVID-19 Vaccine?

The EEOC issued guidance on October 28, 2021, confirming that if an employee has a sincerely held religious belief, practice, or observance that conflicts with getting the COVID-19 vaccine, the employer must consider reasonable accommodations that do not require the vaccine. While an employer should generally assume that a request for religious accommodation is based upon sincerely held beliefs, if the employer has an objective basis for questioning either the religious nature of, or the sincerity of, a particular belief, it may make a limited factual inquiry and seek supporting information. Requests for religious exemptions from vaccines cannot be based on social, political, or economic views, or personal preference.

When an employer is faced with a legitimate request for a religious accommodation from a COVID-19 vaccination requirement, it must consider and provide a reasonable accommodation, unless the accommodation would impose undue hardship. Examples of reasonable accommodations may include (but are not limited to) mask wearing, periodic COVID-19 testing, teleworking, and reassignment. Just like requests for medical accommodation, each situation should be individually evaluated and tailored to the employee making the exemption request.

Undue hardship is a substantial burden for an employer to show, and employers should consider speaking with a lawyer before denying requests for reasonable accommodation.

Can Employers Ask for Proof of Vaccination?

Yes, the EEOC has confirmed employers may require employees to provide documentation or confirmation of vaccination. This inquiry does not infringe on any of an employee’s rights, including any right to keep medical information confidential, but any information provided by an employee in response must be kept confidential and stored separately from the employee’s general file.


As of now, employers have options when deciding what is best for their workplace, including mandating that employees get the COVID-19 vaccine. Employers should continue to follow the EEOC’s guidance and case law as the issue develops further. In addition, employers should ensure that they are in compliance with accommodation requirements set forth in ADA, Title VII and state law. EEOC guidance can be found at

[1] Memorandum Opinion for the Deputy Counsel to the President, Whether Section 564 of the Food, Drug, and Cosmetic Act Prohibits Entities from Requiring the Use of a Vaccine Subject to an Emergency Use Authorization (Jul. 6, 2021), available at