Employers, Consider These Legal Issues Before Mandating COVID-19 Vaccinations

The spread of the Delta variant in the United States is creating another spike in COVID-19 cases and deaths. This in turn has caused an increased push to get people vaccinated.[1]

Although private employers generally may mandate vaccination in most jurisdictions, this is not without limitation. The following are some important issues for private employers to consider before implementing a vaccine mandate.

Discrimination and Reasonable Accommodations

Employers must ensure that any policy mandating vaccination is compliant with applicable federal, state, and/or local laws or regulations that prohibit discrimination against protected classes. That means policies should be applied in a non-discriminatory manner.

Even when a policy is applied uniformly to all employees (or categories of employees not based on any protected characteristics), the U.S. Equal Employment Opportunity Commission (EEOC) has warned that employers may still be subject to disparate-impact discrimination claims on the basis that the policy disproportionately excludes employees based on their protected characteristic. The EEOC explained that “because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.”[2] For example, CDC data shows that Hispanic/Latino and (non-Hispanic) black individuals currently have the lowest vaccination rates. Also, men are currently vaccinated at a lower rate than women.[3]

Employers may also be required to provide reasonable accommodations pursuant to applicable federal, state, and/or local laws or regulations. For example, the EEOC has advised that employers subject to Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA) are, in some circumstances, required to provide reasonable accommodations to employees who do not get vaccinated because of a disability (which may include a pregnancy-related condition) or sincerely held religious beliefs, practices, or observances. Examples of such accommodations include:

  1. Wearing a mask or socially distancing while working
  2. Modifying the work environment (such as improving ventilation systems)
  3. Working a modified or staggered shift
  4. Getting periodic COVID-19 tests
  5. Teleworking and/or accepting a reassignment.[4]

According to the EEOC, “[e]mployers may rely on CDC recommendations when deciding whether an effective accommodation is available that would not pose an undue hardship.”[5] Also, before an employer denies a request for an accommodation on the basis of a claim of undue hardship, the EEOC has cautioned employers to consider “[t]he 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, who may be ineligible for a vaccination or whose vaccination status may be unknown.”[6]


Although vaccination information may be classified as personal health information subject to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), HIPAA only applies to HIPAA-covered entities. As explained by the U.S. Department of Health & Human Services, HIPAA generally does not apply to most employers.[7]

However, confidentiality requirements pursuant to the ADA or state law may apply. The ADA generally requires employers to maintain medical information in separate, confidential files to be shared only under limited circumstances (e.g., with managers and supervisors only as necessary). According to the EEOC’s most recent guidance, information about an employee’s COVID-19 vaccination should be treated as such confidential medical information.[8]

Wage and Hour Issues

The time employees spend getting vaccinated to satisfy an employer’s mandatory-vaccination requirement may be considered compensable under federal and/or state law. Although the U.S. Department of Labor has not issued guidance or an opinion on this issue, the Illinois Department of Labor has stated that, “if an employer requires employees to get vaccinated, the time the employee spends obtaining the vaccine is likely compensable” under the Fair Labor Standards Act and the Illinois Minimum Wage Law.[9]

Employers may also be required to provide compensation pursuant to local law. For example, under the City of Chicago ordinance for the Establishment of COVID-19 Vaccination Rights for Workers and Prohibition of Retaliation by Employers, employers are required to provide compensation (up to four hours per dose) for employer-mandated vaccination if the vaccination takes place during a shift. In addition, they may not require that vaccination appointments be made during non-shift hours—even if the vaccination is done voluntarily.[10]

Under state and/or local laws, employers may even be required to provide paid leave for voluntary vaccination.

Tax credits may be available to reimburse eligible employers for providing paid leave. For example, employers with fewer than 500 employees may be able to obtain reimbursement for “paid sick and family leave due to COVID-19, including leave taken by employees to receive or recover from COVID-19 vaccinations.”[11]

The attorneys in our Employment & Labor Law team can help you evaluate these and other legal issues that may arise when deciding if and how to mandate COVID-19 vaccinations. These attorneys can also help employers stay up to date on this evolving topic.

[1] Anurag Maan et al., U.S. Reports More than 1,000 COVID Deaths in Single Day, Reuters, Aug. 18, 2021, https://www.reuters.com/world/us/us-reports-more-than-1000-covid-deaths-single-day-2021-08-18/; Robert Towey & Leslie Josephs, Covid Vaccine Mandates Sweep Across Corporate America as Delta Variant Spurs Action, CNBC, Aug. 9, 2021, https://www.cnbc.com/2021/08/09/covid-vaccine-mandates-sweep-across-corporate-america-as-delta-surges.html.

[2] U.S. Equal Emp’t Opportunity Comm’n, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (May 28, 2021), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

[3] Centers for Disease Control and Prevention, Demographic Characteristics of People Receiving COVID-19 Vaccinations in the United States (Aug. 24, 2021), https://covid.cdc.gov/covid-data-tracker/#vaccination-demographic.

[4] Id.

[5] Id.

[6] Id.

[7] U.S. Dep’t of Health & Human Servs., 3028 – If My Employer Requires Proof of my COVID-19 Vaccination Status, Does that Violate My Rights under HIPAA?, https://www.hhs.gov/answers/if-my-employer-requires-proof-of-my-covid-19-vaccination-status/index.html (last visited Aug. 20, 2021).

[8] U.S. Equal Emp’t Opportunity Comm’n, supra note 2; 29 C.F.R. 1630.14(d)(4).

[9] Ill. Dep’t of Labor, Employer Guidance: Compensation, Paid Leave and the COVID-19 Vaccine (March 2021).

[10] Chi., Ill., SO2021-1219 (Apr. 23, 2021).

[11] IRS, Under the American Rescue Plain, Employers Are Entitled to Tax Credits for Providing Paid Leave to Employees Who Take Time Off Related to COVID-19 Vaccinations (July 28, 2021), https://www.irs.gov/newsroom/employer-tax-credits-for-employee-paid-leave-due-to-covid-19.

  • Julieta A. Kosiba

    Julieta A. Kosiba focuses her practice on civil litigation.

    She has experience in defending clients across a broad range of matters, including personal injury, property damage, premises liability, and product liability claims; ...

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Kerri Forsythe

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