May employers legally require COVID-19 shots for all employees? According to updated guidance issued by the Equal Employment Opportunity Commission (“EEOC”), the answer is yes: employers may legally require all employees physically entering the workplace to be vaccinated for COVID-19. On the other hand, the Biden administration just directed federal agencies to neither mandate shots nor require related disclosures from federal employees. And, as the New York Times recently reported, some states are pushing back on vaccination mandates.
What are responsible employers to do? Notably, while news headlines may not indicate so, the EEOC’s guidance contains significant caveats addressing employee objections and other cautions, the applicable law is far from clear, and additional confidentiality concerns warrant attention. Worker safety also remains of key importance – as it rightly should. Previously, methods like widespread shutdowns, remote work, masking, and social distancing were all used to protect worker safety. Employees are now increasingly returning to in-person work sites, often at employers’ behest. This return-to-work trend makes sense given rapidly declining cases, easily available COVID-19 shots, and other encouraging news about natural immunity and available treatments.
Wedged between this resulting proverbial rock and a hard place, and to borrow another metaphor, do responsible employers now face a can of worms? Probably, if they are imposing a blanket mandate – as the EEOC caveats demonstrate. Consequently, prudent employers should refrain from such across-the-board mandates and instead promote a safe return to the workplace through a nuanced approach: (1) encouraging workers to get the COVID-19 shot (such as through paid time off for the shot and recovery time); (2) imposing any mandatory requirements based on specific job-related safety concerns; (3) recognizing and honoring individual employees’ objections based on disability, other health concerns, and religious and related conscientious objections; (4) addressing concerns of employees who are hesitant to return to work without a blanket vaccination mandate; (5) evaluating related morale-related aspects; and (6) assessing potential liability implications of any mandated COVID-19 shots (such as if adversely treated employees later file disability or religious discrimination lawsuits, seek workers’ compensation relief for vaccine-related injuries, or assert claims based on confidentiality or privacy violations); and (7) protecting confidentiality of employees’ sensitive medical information.
EEOC Guidance on Mandated COVID-19 shots
The EEOC’s May 28, 2021 “Question and Answer” guidance is quite extensive, providing background legal information and instructive help across a broad range of federal employment laws implicated by COVID-19. As its prefatory remarks recognize, “the availability of COVID-19 vaccinations raises questions under the federal equal employment opportunity (EEO) laws, including the Americans with Disabilities Act (ADA), the Rehabilitation Act, the Genetic Information Nondiscrimination Act (GINA), and Title VII of the Civil Rights Act, as amended, inter alia, by the Pregnancy Discrimination Act (Title VII).” The EEOC guidance then sets forth several questions and answers addressing key areas of likely concern to employers.
The EEOC’s first Q&A sets certain legal parameters, focusing on federal law: “The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provision of Title VII and the ADA and other EEO considerations.” In other words, employers need to exercise care and attentiveness to significant employee protections, particularly in relation to health-related and religious objections as follows. Notably, the EEOC addresses neither additional legal considerations under similar disability-related state and local laws nor other significant legal concerns as explained below in this article; the EEOC stays within its own federal administrative agency lane.
1. Countervailing Health Concerns – Disability, Pregnancy, Other Health Issues
As the EEOC recognizes, the ADA and related disability protection laws “require an employer to provide reasonable accommodations” for employees who do not get the COVID-19 shot because of a disability, “unless providing an accommodation would pose an undue hardship on the operation of the employer’s business.” This jargon-filled statement begs for definitional clarification about the following three terms: (1) disability; (2) reasonable accommodation; and (3) undue hardship. Such terms are typically used as well under comparable state and local disability discrimination laws. A brief primer on disability laws is thus warranted, before focusing on COVID-19-specific considerations.
A. Disability Terminology
A “disability” for ADA purposes is “a physical or mental impairment that substantially limits a major life activity.” This definition should generally be interpreted broadly, particularly by employers seeking to avoid potential ADA-related liability. Some examples include asthma, alcoholism, cancer, depression, diabetes, heart disease, and pregnancy-related medical conditions. Notably, potential ADA liability extends to claims of retaliatory conduct by an employer based on an employee’s asserted disability, so wise employers tend to steer clear of grey areas involving disability-related legal protections.
The term “reasonable accommodation” refers to a modification or adjustment to a job, the work environment, or the way things are usually done within a work environment. These modifications enable an individual with a disability to have an equal opportunity to successfully perform their job tasks to the same extent as people without disabilities. The term “undue hardship” provides a counterbalance for employers, allowing them to refuse a requested accommodation as “unreasonable” if it would cost too much or would otherwise involve significant difficulty. Whether an accommodation is reasonable or unreasonable (i.e., posing an undue hardship) is generally a fact-specific inquiry, involving considerations of the employer’s size, nature of work, available resources, and feasible options.
B. Disability-Based Objections to COVID-19 and “Direct Threats”
Turning to COVID-19 issues, the EEOC’s guidance (Q&A No. 5) addresses employers’ vaccine mandates in the face of employees’ disability-based objections:
Under the ADA, an employer may require an individual with a disability to meet a qualification standard applied to all employees, such as a safety-related standard requiring COVID-19 vaccination, if the standard is job-related and consistent with business necessity. If a particular employee cannot meet such a safety-related qualification standard because of a disability, the employer may not require compliance for that employee unless it can demonstrate that the individual would pose a “direct threat” to the health or safety of the employee or others in the workplace.
Employers that impose organization-wide vaccine mandates thus must satisfy the “job-related” and “consistent with business necessity” prerequisites, as well as address any disability-related objections through a “direct threat” assessment, to satisfactorily resolve any disability-based employee objections.
The term “direct threat” is defined under federal law as a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation. Accordingly, if an employee declines the COVID-19 shot because of a disability (or another health concern that may give rise to disability-related legal protection), then the employer must determine (1) whether there is a direct threat from not receiving the shot; and if so, (2) whether a reasonable accommodation will reduce or eliminate the threat.
The direct threat determination is a fact-intensive inquiry requiring an individualized assessment of the objecting employee’s present ability to safely perform the essential functions of his or her job. Factors relevant to the inquiry include the following: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.
According to the EEOC, an appropriate employer inquiry should take into consideration the work environment, such as the frequency and duration of the objecting employee’s direct interaction with others, the number of partially or fully vaccinated persons in the workplace, whether other staff wear face coverings or undergo routine testing, available ventilation, and available space for social distancing. Moreover, a finding that a particular employee poses a direct threat must be based on reasonable medical judgment that relies on the most current medical knowledge about COVID-19 (e.g., the Centers for Disease Control and Prevention, National Institutes of Health, etc.), rather than mere speculation.
C. COVID-Related Reasonable Accommodation/Undue Hardship Evaluation
If an employer determines that an objecting employee with a disability poses a direct threat to self or others, the employer must next consider whether providing a reasonable accommodation would reduce or eliminate the risk. If a reasonable accommodation is needed for a person to apply for a job, perform a job, or enjoy benefits and privileges of employment, the employer must provide it unless it would pose an undue hardship, that is, impose on the employer significant difficulty or expense.
Reasonable accommodations could include allowing an objecting employee to enter the workplace wearing a face covering, work at a social distance from coworkers or non-employees, work modified shifts, undergo periodic COVID-19 screening and testing, work remotely, or even be reassigned to another position. A blanket vaccination mandate thus flies in the face of appropriate fact-specific evaluations and reasonable accommodation determinations, at least for employees with disabilities and other health-related concerns that are protected by federal, state, and local disability laws. Any blanket vaccination mandate would therefore likely result in numerous, fact-specific evaluations and required accommodations such that no “blanket mandate” would exist, in practice, particularly with respect to employees with disabilities and other health-related concerns
2. Countervailing Religious Objections – Similar Employer Obligations
If an employee objects to the COVID-19 shot based on his or her sincerely held religious belief, practice, or observance, the EEOC instructs employers (in Q&A No. 12) to handle such matters similarly to disability-related objections:
Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from getting a COVID-19 vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship. Employers also may receive religious accommodation requests from individuals who wish to wait until an alternative version or specific brand of COVID-19 vaccine is available to the employee. Such requests should be processed according to the same standards that apply to other accommodation request.
Again, the employer must provide a reasonable accommodation to an employee who asserts a religious objection, unless doing so would result in an undue hardship.
Notably, the EEOC instructs employers to consider “religion” quite broadly:
EEOC guidance explains that the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar. Therefore, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance. However, if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.
Employers should therefore generally respect employees’ assertions of religious objections, although not necessarily without limit. Additionally, a right of conscience objection to COVID vaccine shots may or may not fall within this legal protection, depending on whether it relates to any sincerely held religious convictions.
As with disability-based issues, an employer is legally obligated to thoroughly consider all possible reasonable accommodations that may be sought by an employee, undue hardships that an employer may assert in response thereto, and other potential employee rights:
Considerations relevant to undue hardship can include, among other things, the proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees, whose vaccination status could be unknown or who may be ineligible for the vaccine. Ultimately, if an employee cannot be accommodated, employers should determine if any other rights apply under the EEO laws or other federal, state, and local authorities before taking adverse employment action against an unvaccinated employee.
Per the EEOC’s guidance, handling employees’ religious objections to mandatory COVID-19 shots thus can get complicated and fact-intensive quickly - as with disability-related objections. In short, there really are no simple answers here, as unfortunately is all too common with COVID-19-related issues.
Potential Employer Liability and Other Ills
So herein lies the real can of worms. Once an employer requires COVID-19 shots for its employees (whether on an all-staff basis or for a smaller employee group), the employer may then face a plethora of problematic issues that could lead to a wide variety of potential liability, significant administrative headaches, loss of employees, and related harm to employee morale.
1. Confidentiality Issues
As the EEOC points out in its guidance, the ADA requires employers (with limited exceptions) to keep confidential any medical information learned about a job applicant or employee. Medical information includes not only a diagnosis or treatments, but also confirmation of any COVID-19 shot and the fact that an individual has requested or is receiving a reasonable accommodation. An employee’s medication information must be kept confidentially and stored separately from the employee's personnel file. By mandating COVID shots, employers are requiring employees to disclose potentially sensitive medical information – now to be maintained confidentially, at risk of potential liability for failure to do so.
2. Disability and Religious Discrimination Lawsuits
On a partially related note, employers that mandate COVID-19 shots are inviting employees to disclose medical and religious information that gives rise to disability-related rights – or at least questions, concerns, or confusion about the validity of such potential rights. For example, an employer may not be aware of an employee’s health problems, especially if they are not noticeably affecting the employee’s work performance presently – until the subject of COVID shots is raised. Once the employer becomes aware of such potential disability, the employer may not take adverse action against the employee based on such actual or perceived disability. Similarly, an employer may not be aware of an employee’s sincerely held religious beliefs that may affect their work duties. Disclosure of such information may lead to a quagmire for supervisors involving employees’ actual disabilities, perceived disabilities, potential retaliation claims even from persons who do not have qualified disabilities, valid religious objections, potentially invalid religious objections, follow-up questions about reasonable accommodations, undue hardships, and related questions of “direct threats.”
These potentially problematic areas may then evolve into potential discrimination claims, to be asserted by persons who later lose their jobs, are denied promotions, are not hired, or otherwise face adverse employment actions. The unintended consequence is thus that an employer may unwittingly provide a disgruntled employee with a stronger case of unlawful discrimination – should the employer later discharge the employee or take other adverse action.
3. Resulting Health Injuries
Along with discrimination-related liability per above, employers should consider the risk of other potential liability associated with mandating COVID-19 shots. For example, employers could face liability under state workers’ compensation laws if an employee experiences an adverse reaction from a shot. Indeed, employees’ claims for injury for mandated vaccines are expressly permitted in Illinois and South Carolina. Given that the COVID shots are still in relatively early stages of use, with some reported cases of physical harm therefrom, such potential injury is possible.
4. Illegal Compulsion?
COVID-19 shots are currently classified as experimental, emergency-use-authorization-only, and without FDA approval. Consequently, while they are widely considered as a worldwide Godsend to help people return to normalcy, COVID shots’ legal status carries important resulting implications for any employer-imposed mandate. In particular, since federal law indicates that individuals should be given the “option to accept or refuse administration” of such types of emergency medical intervention, potential liability could arise for employers who compel them.
What does this legally required “option to accept or refuse” mean within the employment context? Given the currently intense interest among so many, test lawsuits are surely to follow. Who will prevail in court, and at what cost to individuals and organizations? This legal area will surely continue to evolve, as is true for so much with COVID-19. A prudential and more economical approach may thus be to avoid the litigation battle.
Harkening back to the EEOC guidance, keep in mind that the EEOC is not the final authority in all contexts. Rather, the EEOC is a federal agency only. The EEOC is responsible for handling initial claims of discrimination under the ADA (disability claims) and Title VII (religious and other discrimination claims), but it is subject to judicial rulings and case precedent. Moreover, the EEOC’s guidance documents control only the EEOC itself; courts may find the EEOC’s pronouncements significant, but they are not necessary legally binding. Employees thus may seek court relief from mandated COVID-19 shots, and they may well prevail in such litigation.
Within the litigation context, a likely question may be how receptive courts will be to employer-mandated COVID shots or, conversely, to employees’ objections? Applying the EEOC’s guidance to resulting employment litigation, the answer may well depend on the extent to which such mandate is tailored to the employee’s work obligation and even the employer’s type of work, and courts may afford significant deference to prevailing medical consensus. But again, we live in unprecedented times – and therefore litigation could be both risky and expensive for both employer and employee alike.
5. Lost Employees and Damaged Morale
Additional practical implications arise too. Aside from potential types of liability per above, does an employer want to insist that employees receive COVID-19 shots, when employees may object for a variety of reasons such as reliance on other medical options, still-evolving medical understandings, not-yet-obtained FDA approval for vaccines, decreasing COVID-19 infection rates and herd immunity considerations, and other safety measures such as masking, social distancing, and ventilation?
On the other hand, many employers have experienced great societal pressure to proceed with mandatory COVID-19 shots, based on perceived understandings that all will be safe if everyone gets the shot. Some employees may even feel much better if their co-workers are coerced to do so, or if such co-workers leave the workforce instead. But such results will most certainly be painful for many, disruptive for workplace teams, and otherwise detrimental for morale.
No doubt, our challenging times call for extraordinary care and consideration for each other. Here are some key tips for applying the above legal parameters, addressing the attendant risks, and handling workplace issues.
1. Broadly speaking, employers may find it helpful to encourage COVID-19 shots, but not to require them. Consider providing time off to get the shots and for any recovery needed.
2. Be respectful of everyone, regardless of their stance on these concededly volatile issues for many. People may be gravely concerned for their health, their livelihood, and their personal autonomy. Honor them all.
3. Consider specific jobs that may warrant special requirements, as with any safety measures. Do certain jobs warrant mandatory COVID-19 shots? If so, what “reasonable accommodations” or other safety alternatives may be feasible? (See No. 2 above.)
4. Notwithstanding the above, treat all employees fairly, equally, and equitably as possible under the circumstances, guarding against giving less favorable work to – or withholding job assignments from –those employees who may object to mandatory shots. Such approach will help avoid potential discrimination claims by such employees.
5. If a mandatory shot approach is taken (for some or all employees), be prepared to handle resulting disability and religious objections – in myriad varieties and with the accompanying liability risks per above.
6. Guard confidentiality of employees’ medical information.
7. Note too that many of these considerations apply as well to nonprofit volunteers. While they may not be protected by employment laws, volunteers nevertheless may have legally valid confidentiality rights and potential personal injury claims. Their morale counts too!
8. Communicate expectations to employees as appropriate. Employees need not necessarily understand all the contours of the above guidance, but they may be quite interested to know what to expect – especially as workers continue to return to work, with the news full of vaccine headlines.
Finally, remember that at least in one significant respect, COVID-19 is no different than many other employment challenges: workers may be both an organization’s most valuable assets, as well as its greatest potential liabilities. Great care and attentiveness in employment matters thus remains paramount.
29 C.F.R. § 1630.2(r)
Earlier in 2021, the EEOC issued its updated Compliance Manual on Religious Discrimination, extensively addressing religion in the workplace including important employment exemptions, harassment issues, and reasonable accommodation considerations. Notably, the EEOC’s comprehensive guidance dealt extensively with the often fact-specific intersection between employees’ and employers’ rights and obligations with respect to religious matters. For additional guidance, see our blog Employment Related Religious Rights and Responsibilities - EEOC.
 The Occupational Safety and Health Administration (OSHA) recently announced that employers need not report worker injuries resulting from COVID-19 shots. However, such government suspension of otherwise applicable reporting requirements does not relieve employers of potential liability from the shot-related injuries.
 See 820 ILCS 305/11 (providing that injury or disease arising from administration of a vaccine . . . , as a response to, a threatened or potential bioterrorist incident to the employee as part of a voluntary inoculation program in connection with the person's employment . . . is deemed to arise out of and in the course of the employment for all purposes under this Act). See also Lee v. Wentworth Mfg. Co., 240 S.C. 165, 168-69 (1962). (holding that that infection of claimant's tuberculin test wound following inoculation on the employer's premises, during working hours, pursuant to a health program cooperated in by the employer and a union, was an accident which arose out of and in the course of the claimant's employment.)
 More specifically, Subsection bbb-3(e)(1)(A)(ii)(III) of section 360 of Title 21 of the United States Code, otherwise known as the Emergency Use Authorization section of the Federal Food, Drug, and Cosmetic Act, requires that individuals be given the "option to accept or refuse administration" of the Covid-19 vaccine. (21 U.S. Code § 360bbb–3 - Authorization for medical products for use in emergencies)
 See Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306, 1313 (11th Cir. 2013) (“An agency guidance document is entitled to respect only to the extent that it has the power to persuade.").
 See, e.g., Chmura v. Monongalia Health Sys., No. 1:17-cv-222, 2019 U.S. Dist. LEXIS 134373 (N.D. W.Va. 2019) (dismissing a fired employee’s claim that her employer, a large hospital, failed to accommodate her latex allergy disability when it required all employees to receive an influenza vaccine; the hospital’s asserted medical justification for requiring vaccination passed muster as a legitimate and reasonable effort to protect patients); Phillips v. City of New York, 775 F.3d 538, 543 (2d Cir. 2015) (limited exclusion of unvaccinated religious children and any others who were not vaccinated "during an outbreak of a vaccine-preventable disease held constitutional," even though it affected the plaintiffs' religious practice, and involving a more established vaccine than for COVID-19); and Am. Dental Ass’n v. Sec’y of Labor, 984 F.2d 823, 839 (7th Cir. 1993) (Coffey, J., concurring in part) (noting the potential benefit of mandatory hepatitis B vaccination for healthcare workers under OSHA rule, and citing the success of mandatory vaccination programs for schoolchildren, those traveling abroad, and military forces).
 See, e.g., Prevention & At Home Treatment Mass Distribution Protocol for COVID-19 (describing prophylactic and responsive treatment options particularly ivermectin, which has been scientifically shown to be highly effective in preventing and treating COVID).