In December 2020, we published a newsletter discussing the fact that employers can require their employees to receive the COVID-19 vaccine in order to return to work.  This office receives at least 5 calls a day on whether the employer can ask an employee if he/she has received the COVID-19 vaccination and if not, can the employer require the vaccination as a condition to return to work.  Since our December 2020 newsletter, there has been further guidance provided by the U.S. Equal Employment Opportunity Commission (“EEOC”).

            First, an employer may ask an employee about his or her vaccination status provided the employer is careful not to violate the Americans with Disabilities Act (“ADA”).  The best course of action is to ask employees for proof of COVID-19 vaccination as this is unlikely to obligate or require the employee provide the employer with ADA protected information.  However, employers must understand that the EEOC permits employees to decline to provide this information to the employer.  While the EEOC permits employers to ask about vaccination status, they advise against asking follow up questions – specifically they direct employers not to ask questions regarding why an employee did not receive the vaccine.  Employers should also check state and local laws and regulations to ensure their inquiry into employee COVID-19 vaccination status does not violate any state and local laws and/or regulations.

            Secondly, the EEOC has provided updated guidance for employers relating to COVID-19 and the ADA and the Rehabilitation Act (which include the requirement for reasonable accommodation and non-discrimination based on disability, and rules about employer medical examinations and inquiries), Title VII of the Civil Rights Act (which prohibits discrimination based on race, color, national origin, religion, and sex, including pregnancy), the Age Discrimination in Employment Act (which prohibits discrimination based on age, 40 or older), and the Genetic Information Nondiscrimination Act.

            The EEOC expressly stated that under federal anti-discrimination laws, employers are permitted to require all employees who physically enter the workplace to be vaccinated for COVID-19 but if the employer encourages or requires the vaccination, they must comply with the ADA, Title VII and all other laws.  This includes, but is not limited to, providing accommodations for employees that have a disability or religious objection and also reaching an agreement with a union if the employees are part of a union.  As you can assume, employers may not apply a vaccine requirement to employees in a manner that treats employees different based upon disabilities, race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age, or genetic information unless there is a legitimate non-discriminatory reason.  Additionally, the EEOC further emphasized that, as with any employment policy, employers may still need to respond to allegations that a vaccine requirement has a higher disparate impact on certain employees.  The EEOC further states that employers should keep in mind that due to the fact that some individuals may have “greater barriers” to obtaining the COVID-19 vaccine than others, and as a result, some employees could be more likely to be negatively impacted by an employer’s vaccine mandatory requirement. However, this is less of an issue now than it was last winter and/or spring. 

            If an employer chooses to require proof of vaccination, employers are reminded that they are required to maintain the confidentiality of employee medical information – including documentation or other confirmation of the COVID-19 vaccination.  Vaccination confirmation, like all medical information, must be kept confidential and stored separately from an employee’s personnel file.

            Notwithstanding, many employers are choosing to give employees a choice: either get the COVID-19 vaccination or be willing to submit weekly negative COVID-19 test results in order to return to work.  Other employers are making vaccination voluntary but offering incentives to those that are vaccinated.  As an employer, whatever your policy is it is best to put whatever your vaccination policy is in writing and apply it equally to all employees. 

            Since the subject of vaccination is such a personal topic, employers should be prepared to face some difficult decisions, especially if some employees object to receiving the vaccination.  The vaccine and the pandemic are still ever evolving and new information is provided by the government on a semi-regular basis.  We will provide updates with more information and guidance as it is released and as the pandemic evolves.  

            Please contact our office if you would like to discuss whether a vaccine mandate would be effective in your specific business situation.