by Greg Tumolo | COVID-19 vaccination status has become an increasingly common topic of conversation in the workplace. Now that vaccines are widely available throughout the US and the Centers for Disease Control and Prevention (CDC) has opined that fully vaccinated people no longer need to wear masks or engage in social distancing in many indoor settings, employers and HR professionals are left to wonder: What types of questions about vaccination status are legally permissible?
The below Q&A is designed to help employers understand their legal rights and obligations around this important topic.
Q: Can I ask an employee if they are fully vaccinated?
A: YES. In its recent guidance, the federal Equal Employment Opportunity Commission (EEOC) indicated that it is permissible to ask employees about their COVID-19 vaccination status. A simple Yes/No question is not likely to elicit information from the employee about the existence of underlying medical conditions or disabilities. If an employer plans to ask employees about their vaccination status, they should make clear that employees do not need to produce any other medical information in response to the employer’s Yes/No question.
Q: Can I ask an employee for proof that they have been vaccinated?
A: YES. Employers may require employees to provide proof of vaccination. In most cases, this proof will consist of the CDC-issued vaccination card that shows the date(s) upon which the vaccine was administered to the employee and the location. To minimize legal risk, employers should make clear that employees do not need to produce any additional documentation, including medical records.
Q: Can I ask an employee for a copy of their vaccination documentation?
A: YES. However, any documentation that the employer receives regarding an employee’s COVID-19 vaccination status should be treated as a confidential medical record.
Q: Can I ask an employee why they have not been vaccinated?
A: IT DEPENDS ON THE CIRCUMSTANCES. Such a question may be posed if it is “job-related and consistent with business necessity.” According to the EEOC, this standard is met if the employer has a reasonable belief, based on objective evidence, that an unvaccinated employee would pose a direct threat to the health or safety of themselves or others. Whether an employee poses a direct threat involves a fact-intensive analysis and should be conducted on a case-by-case basis in consultation with legal counsel.
By way of example, an employee who will remain working from home indefinitely likely does not present a direct threat to the workforce or the public if they choose not to get vaccinated. Accordingly, asking such an employee why they have not been vaccinated likely would not meet the direct threat standard. In contrast, an employee working in public health and safety (e.g., a nurse providing direct patient care to immune-compromised patients) may pose a direct threat.
Employers also may ask an employee why they have not been vaccinated as part of the interactive process required under federal and state disability laws such as the Americans with Disabilities Act (ADA). An employer may need to provide reasonable accommodations to employees who are unable to get vaccinated due to an underlying medical condition/disability or sincerely held religious beliefs.
Q: Can I ask an employee how their vaccination appointment went?
A: YES, BUT YOU PROBABLY SHOULD AVOID DOING SO. It is not uncommon for individuals to experience side effects from the COVID-19 vaccine. Out of natural curiosity and/or genuine concern, employers often want to know how their colleagues fared after their vaccination appointment. However, such questions may result in the employee disclosing information related to an underlying medical condition or disability that the employer does not need to know. Managers need to know that any such information revealed may trigger the employer’s obligation to engage in the interactive process regarding potential accommodations.
Q: Can I ask our employees to get vaccinated as a condition to returning them to the workplace?
A: YES, BUT PROCEED WITH CAUTION. Mandating that employees get vaccinated as a condition to returning them to the workplace implicates a number of complicated legal and employee relations issues.
From a legal perspective, employers considering a mandatory vaccination requirement should work closely with legal counsel to develop and implement a vaccination policy. The policy should state why mandatory vaccination is job-related and consistent with business necessity. The policy also should describe the procedure for employees seeking an exemption based on accommodation of a medical condition/disability or sincerely held religious belief. Employers should work closely with counsel to develop forms for requesting an exemption on medical or religious grounds.
From an employee relations perspective, mandating vaccination may result in skepticism and resistance. Many individuals are vaccine hesitant for personal reasons and have adopted a “wait and see” approach that may ultimately result in vaccination. Providing such employees with objective information from trusted sources about the safety and efficacy of the COVID-19 vaccines may go a long way toward dispelling these concerns.
To learn more about the COVID vaccine in your workplace, reach out to Greg Tumolo, chair of the Employment Law Group at Duffy & Sweeney.