Mandatory COVID-19 Vaccination

*Updated April 8, 2021

With COVID-19 vaccination becoming more widely available, employers have started asking whether they can require employees to be vaccinated.  The answer is yes, with certain limitations.  For example, the employer may need to provide reasonable accommodations in the case of a disability or sincerely held religious belief.

Of course, a mandatory vaccination policy is not right for all employers.  A voluntary (rather than mandatory) vaccination policy is significant to administer, and avoids various legal and logistical hurdles.  With a voluntary vaccination policy, employers can encourage and incentivize employees to be vaccinated, for instance, by allowing employees to take leave to get vaccinated, paying for the cost of the vaccination, and/or granting additional sick leave to any employee who may suffer side effects from the vaccination.

EEOC Guidance

On December 16, 2020, the EEOC advised that the Americans with Disabilities Act (“ADA”) allows employers to have a qualification standard for employment – such as a vaccination – that includes a “requirement that an individual shall not pose a direct threat to the health and safety of individuals in the workplace.”  However, because such a standard would tend to exclude an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”

The EEOC advised that employers must conduct an individualized assessment of four factors in determining whether a direct threat exists that an unvaccinated person will expose others to the virus at the worksite.  “A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.”

Given the immediate and significant threat posed by COVID-19 for the near future, a compelling the case that an unvaccinated employee would pose a “direct threat.” The EEOC has advised as follows:

Based on guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard.  The CDC and public health authorities have acknowledged community spread of COVID-19 in the United States and have issued precautions to slow the spread, such as significant restrictions on public gatherings.  In addition, numerous state and local authorities have issued closure orders for businesses, entertainment and sport venues, and schools in order to avoid bringing people together in close quarters due to the risk of contagion.  These facts manifestly support a finding that a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time.  At such time as the CDC and state/local public health authorities revise their assessment of the spread and severity of COVID-19, that could affect whether a direct threat still exists.

Employers, however, should stay updated on the EEOC guidance.  This guidance may change as the COVID-19 pandemic evolves, for example as more people get vaccinated and new strains become more prevalent.

Reasonable Accommodations

For employers adopting a mandatory vaccination policy, the policies should be carefully drafted.  For example, the policy would need to specifically address employees’ potential requests for medical or religious accommodations:

Disabilities.  If an employee were unable to receive a COVID-19 vaccination due to a disability, employers would need to engage in a flexible, interactive process to identify accommodations options.  This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability.  The employer could only ask disability-related questions if the information is job related and consistent with a business necessity.  Any accommodation must (1) eliminate or reduce the risk of exposure so that the unvaccinated employee does not pose a direct threat, and (2) not constitute an undue hardship for the employer.

Sincerely Held Religious Practices and Beliefs.  If an employee were unable to receive a COVID-19 vaccination due to a sincerely held religious practice or belief, employers would again need to identify accommodations options that do not constitute an undue hardship.  An undue hardship for religious accommodations is anything more than a de minimis cost or burden on the employer.  The EEOC recommends that employers assume the employee’s accommodation request is based on a sincerely held belief.  Employers could only request information supporting the employees’ religious practice or belief if it has objective basis for questioning the religious nature or the sincerity of a particular practice or belief.

Additional Considerations

There are additional logistical challenges to implementing a mandatory vaccination policy.  Employers should consider a realistic timeline for requiring vaccination, how to keep confidential records of vaccinations, what would be appropriate discipline for violating the policy, how potential side effects might impact staffing, and the effect on morale.

Before disciplining an unvaccinated employee for returning to work, employers should consult with legal counsel because there may be other federal, state, and local laws that might apply.

If you have questions or concerns regarding mandatory COVID-19 vaccinations, please contact Matt T. Paxton of our Employment and Labor Law Practice Group at or 360-671-1796.