Federal Guidance for Employers

The Equal Employment Opportunity Commission guidance discussing COVID-19 and vaccinations can be found here, and excerpts from guidance can be found below.

Biden Administration COVID Action Plan

  • US employers with more than 100 employees will be required to mandate the vaccine or weekly testing.
  • US employers with more than 100 employees will be required to provide PTO for workers to get vaccinated or to recover if they are under the weather post-vaccination. This requirement will be implemented through the ETS.

Vaccine Mandates and Incentivization

  • Federal laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations.
  • Federal laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community, such as a pharmacy, personal health care provider, or public clinic. If employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the ADA.
  • Employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.

Verification and Medical Information

  • The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files.
  • When an employer asks employees whether they obtained a COVID-19 vaccine from a third party in the community, the employer is not asking a question that is likely to disclose the existence of a disability; there are many reasons an employee may not show documentation or other confirmation of vaccination in the community besides having a disability.  Requesting documentation or other confirmation of vaccination by a third party in the community is not a disability-related inquiry under the ADA, and the ADA’s rules about such inquiries do not apply.
  • An employer may invite employees now to ask for reasonable accommodations they may need in the future when they are permitted to return to the workplace. If employees do not request accommodation ahead of time and rather when they return to work, these requests still must be considered.
  • To the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request—after the workplace reopens—to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function. The ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability.
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