As more employers bring employees back to the workplace and navigate new CDC guidance on mask-wearing, they may have questions about whether they can ask about an employee or applicant's COVID-19 vaccination status. Here are answers to frequently asked questions about vaccination inquiries.
Q: Would asking employees to show proof that they received the COVID-19 vaccination violate the law?
A: The federal Americans with Disabilities Act (ADA) has restrictions on when and how much medical information an employer may obtain from any applicant or employee. For example, prior to making a conditional job offer to an applicant, the ADA generally prohibits disability-related inquiries and medical exams. Once an employee begins work, any disability-related inquiries or medical exams must be job related and consistent with business necessity.
The U.S. Equal Employment Opportunity Commission (EEOC) issued guidance that simply requesting proof of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. However, subsequent questions, such as asking why an individual didn't receive a vaccination, may elicit information about a disability and would be subject to the requirement that they be job related and consistent with business necessity. If an employer requires their employees to provide proof that they have received a COVID-19 vaccination, they should advise employees not to provide any medical information so that the request is not viewed as a disability-related inquiry. Pursuant to EEOC guidance, employers should make sure to keep confidential information regarding an employee’s COVID-19 vaccination status.
Some state and local jurisdictions may restrict or prohibit employers from seeking proof of COVID-19 vaccination or making employment-based decisions on the basis of one’s vaccination status. Check your state and local law as well as guidance from local health officials to determine whether you can ask for proof and whether you may make employment-based decisions on the basis of an employee’s vaccination status. Watch for developments in this area because several state and local jurisdictions are contemplating restrictions.
Q: If I am permitted to require proof, do I have to make any exceptions?
A: While the EEOC has taken the position that federal EEO laws do not prohibit employers from requiring the COVID-19 vaccination, or proof of it, employers who implement mandatory vaccine policies are required to provide exceptions for employees who are unable to obtain the vaccination because of a disability or sincerely held religious beliefs, unless it would impose an undue hardship on the employer. State and local laws may also require an exception to such requirements in additional situations, such as with pregnant employees.
Q: If an employee asks for an exception to a mandatory vaccination policy because of a disability or because of religious beliefs, what should I do?
A: If an employee requests an accommodation from a vaccination requirement because of a disability, engage in a discussion with the employee to identify workplace accommodation options that would not result in an undue hardship (significant difficulty or expense) to the business. This process should include determining whether it is necessary to obtain supporting documentation about the employee's disability and a consideration of the possible options for accommodation given the nature of the work and the employee's position. Keep in mind that the prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration. When determining whether providing an accommodation would pose an undue hardship, consult legal counsel.
If an employee requests an exemption from the requirement for religious reasons, employers ordinarily should assume that the request is based on a sincerely held religious belief. However, if you have objective factors that might call into question the nature or sincerity of the request (such as inconsistent behavior), you would be justified in requesting additional supporting information, according to the EEOC.
Q: Can I ask employees for a "vaccine passport" specifically?
A: To date, the federal government and almost all state and local governments have not developed "vaccine passports" – electronic verification of an individual’s COVID-19 vaccination status. Some states have enacted laws or issued executive orders prohibiting businesses and government agencies from requiring vaccine passports for entry into their premises. Employers in these states will need to review the law carefully to determine if they are covered by the ban, which may apply not only to passports but also other documentation. Due to the ambiguity in some of these laws, employers may want to consult legal counsel when doing so.
Q: If I'm permitted to ask for proof, what happens if the employee says they got the vaccination but doesn't have documentation?
A: When receiving the vaccine, individuals are typically provided a card that documents their vaccination progress. If an employee has lost or otherwise does not have documentation, you can ask them to request a copy from the medical provider. If they scheduled their appointment via the Vaccine Administration Management System, they may also be able to obtain their Vaccination Certificate there. If employees are unable to obtain documentation in a timely manner, employers may want to consider having the employee sign an attestation indicating that they have received the vaccine.
Conclusion:
Before asking employees about their vaccination status, review federal, state, and local laws, understand your rights and responsibilities, and take steps to ensure compliance with all applicable rules.