Blog & Legal Updates

Employment Law Update: Can Employers Require COVID-19 Vaccinations?


With the U.S. Food and Drug Administration (“FDA”) issuing the first emergency use authorization for a COVID-19 vaccine, employers are scrambling to determine whether they can legally require their workers to take the vaccine amid the nationwide surge in COVID-19 cases. Yesterday, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 guidance to provide employers with a road map detailing the steps businesses must take before excluding unvaccinated workers from the workplace.

It is important to note that this updated guidance applies only to various federal laws, including the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act (“Title VII”), and Title II of the Genetic Information Nondiscrimination Act (“GINA”). Below are important takeaways for employers under these federal employment laws:

ADA (Disability Exceptions)

Employers can require employees to provide proof that they received a COVID-19 vaccine without violating federal law because this is not considered a disability-related inquiry under the ADA. However, inquiring why an employee refused to be vaccinated may implicate the ADA since such an inquiry could elicit information about a disability, which is why the EEOC recommends that employers warn and direct employees not to provide any medical information as part of the proof of vaccination.

When an employee indicates that he/she is unable to receive a vaccine due to a disability, employers should conduct a case-by-case analysis to determine if the employee poses a “direct threat” to workplace health and safety by being unvaccinated. If a “direct threat” cannot be reduced to an acceptable level via a reasonable accommodation, such as teleworking, then the employer may exclude the employee from physically entering the workplace. However, this does not mean an employer can automatically terminate the employee—employers will also need to determine if other federal, state, and local authorities apply.

Title VII (Religious Exceptions)

Similar to the ADA analysis above, if an employee is unable to receive a vaccine due to a sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, an employer may lawfully exclude the employee from the workplace. Again, employers must consider whether other rights are available before terminating that employee.

GINA (Proof of Vaccination)

Employers may ask employees to show proof of receipt of a COVID-19 vaccination, as this is not a request for genetic information under GINA. However, employees should be warned and directed not to provide genetic information as part of the proof of vaccination. If an employer provides this warning, then any information received as part of this process would not be considered unlawful under GINA.

For the full EEOC publication, you can visit the following link: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Law.

If you have any questions or need assistance with the implementation of COVID-19 vaccination policies and procedures, feel free to contact any of our Labor & Employment attorneys. We’re here to help.


©ScottHulse, P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between ScottHulse and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material.

The Value of CommitmentTM

At ScottHulse, we know the value of commitment. A solid, firm-wide commitment to our clients and strong values, including integrity, excellence, and responsiveness, has sustained the ScottHulse tradition of service for more than 130 years.