EMPLOYER MANDATED COVID-19 VACCINATIONS – CONSIDERATIONS UNDER THE ADA

Early on in the COVID-19 pandemic, Westchester County and The City of New York were some of the hardest hit locations within the United States. Great strides have been made since then at reducing the spread of the virus through public health measures such as mask wearing, social distancing and, of course, vaccinations. In the interest of avoiding the same disastrous economic pressures that came with the onset of the national pandemic, New York employers want to know whether they can require their employees to show proof of vaccination prior to returning to the workplace.


It is important to understand, preliminarily, that NYC employers have three layers of regulation to comply with when it comes to mandatory vaccination. This includes The U.S. Equal Employment Opportunity Commission (EEOC), the New York State Division Human Rights (DHR), and the NYC Commission on Human Rights (NYCCHR). The baseline compliance requirement is the EEOC. It is often referred to as the “floor” of compliance, it is the basic standard which all employers must meet. The NYS Human Rights Law, as well as the New York City Human Rights Law, may offer additional protections.

The EEOC allows for employers to require proof of COVID-19 vaccination from all employees physically entering the workplace, so long as employers comply with the reasonable accommodation provisions of Title VII and the ADA. It is important to understand that this must be a generally applicable requirement of all employees. The requirement must be job related and consistent with business necessity. Compliance with statutory protections such as the ADA and Title VII requires that, if an employee declines to be vaccinated due to a sincerely held religious belief, practice or observance, or a disability, the employer must engage in a good faith, interactive process, to discuss reasonable accommodations that can be offered the employee who is unable to be vaccinated for one of these reasons. Any accommodation must be reasonable, and must not pose an undue hardship on the operation of the employer’s business.

If an employee is unable to meet a required vaccination standard due to a disability, compliance cannot be required for that employee unless it can be demonstrated that the individual would poses a direct threat to the health or safety of the employee, or others in the workplace. A “direct threat” is a significant risk of substantial harm that cannot be eliminated or reduced by a reasonable accommodation. Whether a person, unvaccinated due to a disability, poses a “direct threat” is determined by a four-step analysis of the job to be performed. The four factors to be considered are:

  1. What is the duration of the risk?

  2. What is the nature and severity of the potential harm?

  3. Whether there is a likelihood that the harm will occur; and

  4. What is the imminence of the potential harm.

The answers to these questions must be answered in light of the most recently available, reasonable medical judgement. Reference should be made to official publications of COVID-19 infection data in the location(s) likely to affect the position, recent CDC publications, and consultation with the employees healthcare provider with the employee’s consent. It should also take into account factors such as the nature of the position, whether it requires working in close proximity to others, travel requirements, potential interactions with employees or the public, and the nature of the work space, such as ventilation. An employer should also consider the use of masks within the workplace, social distance capabilities, and the vaccination status of other employees. If, after a thorough analysis, a direct threat is found to exist, the employer must consider whether providing a reasonable accommodation would mitigate against the threat

The nature of a required accommodations always is situationally specific and must be considered on a case by case basis. Furthermore, what is considered “reasonable” is constantly subject to change. In future publications, we will look in more depth at what accommodations might be reasonable under these circumstances.


While compliance with Title VII (enforced by the EEOC) is the floor of necessary compliance, New York City's Human Rights commission has recommended substantially similar steps, although the scope of protected classes extend beyond religious belief, pregnancy or disability. We will also look more in depth at New York City's compliance requirements in more depth, but the basic structure is still the same within the context of a disability. If the employee is unable to prove vaccination, a good faith, interactive discussion about reasonable accommodations must take place.


If you have questions about, or are considering, a mandatory vaccine program, contact our office today. We would be happy to discuss your plans, and assist you in formulating and implementing a policy that protects your workers, your business, your assets and the public at large. Reach out to us today at (718) 614 8739 (Westchester) or (914) 214 9032 (Brooklyn).

While establishing a mandatory vaccination policy in the workplace should never be undertaken without working closely with an experienced attorney, some helpful links when researching whether you should implement a general vaccine requirement for your employees may include:

EEOC’s Publication on COVID-19 and the ADA AARP’s article on working over 50 during the COVID-19 pandemic The CDC workplace Covid-19 toolkit

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