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EEOC Updates Its Guidance on COVID-19 Vaccines Ahead of OSHA’s Emergency Temporary Standard

As we await OSHA’s highly anticipated Emergency Temporary Standard (ETS)—which will require certain employers to implement “vaccine-or-test” policies—the Equal Employment Opportunities Commission (EEOC) recently updated its COVID-19 guidance on workplace vaccine issues.  The EEOC’s latest input highlights some key points for employers to keep in mind as they prepare to comply with the ETS, or, for those outside its reach, as they think about mandating, incentivizing, or simply encouraging COVID-19 vaccines in their workplaces. 


  • Vaccine mandates are (really!) OK, so long as employers provide reasonable accommodations where necessary.

    According to the EEOC, employers may require all employees physically entering the workplace to be vaccinated against COVID-19, subject to the obligation to provide reasonable accommodations for sincerely held religious beliefs (under Title VII, the federal anti-discrimination statute) and for disabilities (under the Americans with Disabilities Act (ADA)).  Employers are not required to provide disability accommodations that pose an “undue hardship” or religious accommodations that cause “more than a minimal burden.” Employers should conduct an individualized inquiry to determine whether an employee’s requested accommodation is necessary and reasonable.  The EEOC’s guidance also counsels employers to consider whether a mandatory vaccine policy would disparately impact certain groups based on race, pregnancy, or other protected characteristics. 

  • Treat pregnant employees the same as non-pregnant employees with respect to exemptions from vaccine mandates.

    On that note, the EEOC reminds us that the CDC recommends COVID-19 vaccines for people who are pregnant, breastfeeding, trying to get pregnant, or planning to later become pregnant.  However, some employees in those categories may still seek an exemption from a COVID-19 vaccine mandate.  In that case, the EEOC cautions employers not to discriminate against such employees as compared to others who are similar in their ability or inability to work.  For example, a pregnant employee seeking a medical exemption from a vaccine requirement may be entitled to job modifications (like remote work) to the same extent employees similar in their ability/inability to work receive such modifications.  In other words—although employers are not obligated under federal law to “accommodate” employees on the basis of pregnancy alone—employers should not treat employees affected by pregnancy, childbirth, and related medical conditions differently from non-pregnant employees.

  • Obtain and protect information about employees’ vaccination status.

    Employers are permitted to inquire about an employee’s vaccination status and to request documentation confirming that an employee has been vaccinated.  Indeed, for employers mandating vaccines, such “proof” is particularly important.  However, because an employee’s vaccination status is confidential medical information under the ADA, it must be kept separately from employees’ personnel files.  Employers should develop a system for collecting and maintaining this information properly.

  • Employers can encourage employees to get vaccinated through certain incentives.

    The EEOC guidance distinguishes incentives for employees to get vaccines from healthcare providers not affiliated with their employer (which incentives are unlimited)—from incentives to get vaccines administered by their employer or its agents (which incentives cannot be so substantial as to be coercive). The EEOC also affirmed that employers can encourage employees to get vaccinated by sharing information about vaccine safety and efficacy, or by working with healthcare providers to make vaccines available for employees. 

The EEOC’s blessing for mandatory COVID-19 vaccine policies paves the way for OSHA’s ETS, which is expected to be released soon.  Employers should work now to align their protocols with this EEOC guidance. In addition, depending on where employers operate, they must navigate the sometimes treacherous landscape of mandatory vaccine bans or other state laws that conflict with the EEOC and federal government’s position.  Consult with your employment counsel when addressing such conflicts or other vaccine-related questions.

© 2023 Foley & Lardner LLPNational Law Review, Volume XI, Number 298

About this Author

Katelynn Williams,  Labor Attorney, Foley Lardner Law Firm

Katelynn Williams is an associate with Foley & Lardner LLP, where she is a member of the firm’s Labor & Employment Practice. She represents employers before state, federal, and administrative bodies in a wide variety of labor and employment-related claims, including retaliation, discrimination, non-compete, and wage & hour matters.

Prior to joining Foley, Ms. Williams was an associate at a Wisconsin-based employment litigation firm, where she focused on employee benefit and wage & hour disputes.