Is getting vaccinated before going back to work now mandatory?

In recent months since their development, the three vaccines authorized and recommended in the U.S. to prevent COVID-19 have become more widely available[1]. With this increased accessibility in vaccination, and a growing number of U.S. employees returning to a physical workplace, many have questions about whether employers may require their employees be vaccinated. The short answer is: generally, yes.

The Equal Employment Opportunity Commission (EEOC), which enforces workplace discrimination laws, including the Americans with Disabilities Act, recently released guidance stating that equal employment opportunity laws do not prevent employers from following CDC or other health authorities’ recommendations.

Under the ADA, employers are usually restricted from making certain disability-related inquiries or administering medical examinations which are not job-related or a business necessity[2]. For these purposes, the EEOC’s guidance has found that requiring the COVID-19 vaccine is not a prohibited “medical examination,” and therefore permissible.

However, this is not without limitations. The EEOC noted that employers who require vaccinations should allow exceptions for employees who cannot get vaccinated due to a disability or sincerely held religious belief[3]. An employer must try to make reasonable accommodations in these circumstances where possible[4]. Employers may only exclude those with disabilities from the workplace for health reasons if they show the employee poses a “direct threat,” or significant risk of substantial harm, despite reasonable accommodations[5].

Additionally, employers are still subject to restrictions on asking certain disability-related questions, which may come up when assessing eligibility for vaccination.

Similarly, while an employer may generally ask an employee if she has received the Covid-19 vaccine, or require proof of vaccination, they must meet certain requirements if they want to ask about why an employee has not received the vaccine. This type of questioning constitutes a “disability-related inquiry,” which must meet the job-relatedness/business necessity standard.

[1] Pfizer-BioNTech, Moderna, Johnson Johnson/ Janssen are currently the three vaccines authorized and recommended in the United States. See CDC, Different COVID-19 Vaccines (May 13, 2021). https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines.html

[2] See EEOC Enforcement Guidance A. 5. https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees

[3] See EEOC Guidance 2020 K. 5-6. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

[4] See EEOC Guidance 2020 K. 7.

[5] See EEOC Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (Oct. 9, 2009; March 19, 2020) https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act#36

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