The Equal Employment Opportunity Commission (EEOC) guidance includes two important exceptions, notes Christopher Tellner, JD, partner with Kaufman Dolowich & Voluck in Blue Bell, PA. Employers remain limited by the provisions of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA).

Title VII requires employers to provide exemptions from any vaccine requirement to employees with sincerely held religious beliefs preventing them from taking the vaccine, Tellner says. Further, the ADA requires employers to provide exemptions from any vaccine requirement to employees with a disability that prevents them from taking the vaccine.

“A personal or political opposition to receiving a vaccination is not sufficient to protect an employee from repercussions should they refuse the vaccine,” Tellner says. “Employees with either a religious belief or disability exemption can still be required to receive the vaccine or be excluded from the workplace if their presence presents a direct threat to the workplace, and if no reasonable accommodation could mitigate that threat to a reasonable degree.”

Tellner notes the EEOC set forth four elements to consider in determining the existence of a direct threat:

  • the amount of time the risk will exist;
  • the potential harm posed by the risk;
  • the probability that any potential harm will occur;
  • the imminent nature of the potential harm.

Reasonable Accommodations

An accommodation is not reasonable if it would pose an undue burden on the employer, Tellner says. Courts have ruled an undue hardship is created by an accommodation that has more than a de minimis or small cost or burden on the employer.

The EEOC delineates between “excluding” employees and “terminating” employees, Tellner notes. While terminated employees will no longer be employed, “excluded” employees still may be entitled to an accommodation that allows them to work away from the workplace if such an accommodation would be reasonable.

Other reasonable accommodations might include requiring additional use of personal protective equipment, isolated/relocated workstations, or removing employees from positions of public exposure.

“These EEOC guidelines are consistent with its prior guidance regarding mandatory vaccination requirements in the wake of widespread health crises, such as previous EEOC guidance in response to the H1N1 epidemic,” Tellner says. “It should also be noted that, in the healthcare context specifically, several state statutes currently require healthcare workers in certain settings to receive various vaccinations, including, for example, influenza and pneumococcal vaccinations.”

Employers seeking to implement mandatory vaccination requirements in their workplace should provide their employees with clear procedures, providing them the option to claim either the religious- or disability-based exemptions, while also conducting a threat analysis to determine if certain employees may be reasonably accommodated based on their position.

If an employer plans to mandate a COVID-19 vaccine, it should develop a written policy that imposes consequences for those who refuse to take the vaccine, ensuring it does not adversely affect people of a protected class (race, age, sex, disability, and religion), Tellner says. Employees refusing vaccination also should keep in mind that if they are terminated for violating immunization mandates, they generally do not qualify for unemployment benefits.


  • Christopher Tellner, JD, Partner, Kaufman Dolowich & Voluck, Blue Bell, PA. Phone: (215) 461-1100. Email: