Tag Archives: ADA Compliance

Can I Ask My Employees If They Have Been Vaccinated?

Male doctor hand wears medical glove holding syringe and vial bottle with COVID-19 vaccine

Contributed by Heather A. Bailey, April 6, 2021

The short answer is: Be careful what you wish for!  During this COVID-19 pandemic, vaccinations have been at the front of everyone’s mind. Now, with the mass rollout of vaccinations across the country, employers’ main questions have been: i) Can we mandate vaccinations for our workforce or, alternatively, ii) can we ask employees whether they have been vaccinated or not (and to show proof of vaccination)? Our Labor & Employment blog has been at the forefront for the first question and provides more information on COVID-19 vaccination developments and what legal risks come into play for employers when mandating the vaccine in the workplace.

Whether you’ve chosen to mandate COVID-19 vaccinations or not, you still may be interested in asking your employees to show proof of their vaccination status.  This simple question comes with its own set of risks. The U.S. Equal Employment Opportunity Commission (EEOC) has given additional guidance in this area in Section K.3 of “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”   

The good news is that generally asking your employees for proof of their vaccination status is not considered a medical exam for reasons that include the fact that there are many reasons that are not disability-related that may explain why an employee may or may not have gotten a vaccination.  For example, they may not have one yet because they have been unable to secure an appointment, or they simply do not believe in the vaccination because they think COVID is a hoax.  This is different from someone not getting vaccinated due to a disability or religious belief.  Moreover, this general practice is not a HIPAA violation and HIPAA does not apply in this context.  The rub and risk come if you ask follow-up questions that may elicit whether the employee may have a disability.  Simply following-up with “why do you not have the vaccination yet?” could be treading into that risky territory that touches on whether an employee’s disability is the reason why the employee has not been vaccinated. 

If you find yourself in that territory,  you will have to evaluate the employee’s response within the framework of the Americans with Disabilities Act (ADA) (or Title VII, if the employee’s response implicates religious beliefs) requirement to justify proof of vaccination being “job-related and consistent with business necessity.”  This is the same analysis an employer must undertake when mandating vaccinations, and it can be a tedious and high standard to meet. View the Labor and Employment Blog for more information on the ADA and employers’ efforts to require mandatory vaccinations and health screenings for employees.

The same is true of follow-up questions that may elicit genetic information (e.g., I cannot get the vaccination due to my family’s history of being immuno-compromised).  (See Sections K.8 and K.9 of the EEOC guidance described above).  Once again, simply asking for vaccination proof does not run afoul of the Genetic Information Nondiscrimination Act (GINA) so long as you stop there in your inquiries.

Practice Tips:

  • Again, be careful what you wish for.  It’s one thing to ask the employee whether they were vaccinated and to show proof, and it’s another to ask why they were not vaccinated. Once you start eliciting disability, religious or genetic information with follow-up questions, you are placing your company at risk of knowing more information than you may have bargained for.
  • You need to ask yourself, first, why do I want to know information regarding why my employees have been vaccinated or not?  What are you going to do with this information?  Having a need and plan for this information will help ensure you have a business justification for why this information is necessary. If you don’t have a plan or a need, you may determine that knowing this information is not really necessary after all.
  • When asking employees to show proof of vaccination, it is good to remind them that you do not want them to include any other medical information that may be listed on their vaccination-related documents.
  • If you determine this is the route you want to take, always work with competent labor & employment counsel to help guide you through the process so you do not step on any landmines (even if it’s just a simple follow-up question). 

Can you Ask Employees Medical Questions during a Pandemic? The EEOC’s Guidance on Complying with the ADA during COVID-19

Contributed by Allison P. Sues, October 26, 2020 

COVID-19 Screening Questionnaire form with medical mask and a pen on it. Healthcare and medical concept. Closeup

As COVID-19 rates are rising throughout the country, employers may want to review the safety measures they are taking to prevent spreading the coronavirus in the workplace. The U.S. Equal Employment Opportunity Commission recently released additional guidance on the interplay between COVID-19 and an employer’s legal obligations under the Americans with Disabilities Act. Key questions and answers regarding steps that employers can lawfully take to safeguard their workplace are summarized below:

  • May employers ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19?  Yes. An employer may ask all employees who are entering the workplace if they have been tested for COVID-19 or have symptoms associated with COVID-19.  An employer may prohibit an employee from physically entering the workplace if he has either tested positive or has symptoms.  Employers may not ask these same questions for employees who are working remotely because soliciting this information must be for the purpose of eliminating a direct threat to the health of other employees, and remote workers cannot pose this sort of threat to employees physically present in the workplace.
  • May employers ask only certain employees about COVID-19 testing or symptoms as opposed to asking all employees?  Yes.  However, the employer must have a reasonable belief based on objective evidence that the specific employee asked may have COVID-19. For example, the employee may be objectively exhibiting COVID-19 symptoms such as a persistent cough.
  • May an employer ask an employee who is physically coming into the workplace whether he has been in contact with anyone who has tested positive for COVID-19 or who has symptoms associated with COVID-19?  Yes.  Employers must make sure that they frame this question as asking for exposure to anyone, not specifically asking about family members.  The Genetic Information Nondiscrimination Act (“GINA”) prohibits employers from asking about employees’ family members’ medical conditions.  Asking about exposure to anyone – beyond just family members – is also a better query because it is more inclusive and better designed to understand an employee’s possible exposure. 
  • May an employer bar an employee from entering the workplace if he refuses to have his temperature taken or to answer questions related to possible COVID-19 exposure or symptoms?  Yes.  Before barring entry, an employer should explain its screening process in an attempt to persuade the employee to comply.  For example, an employer may assure the employee that the medical information collected from the screening is kept confidential and that the employer is simply following health screening recommendations from the CDC.
  • May an employer ask for additional information if an on-site employee calls in sick?  Yes.  During this pandemic, an employer may question an employee about their symptoms if they regularly or occasionally work onsite and report feeling sick.  Relatedly, an employer may ask an employee why they did not report to work if the employee calls off without providing a reason.
  • May an employer ask employees about travel during the pandemic?  Yes.  If the CDC or local public health officials recommend that people quarantine after visiting certain locations, an employer may ask its employees if they have traveled to those locations for work-related or personal travel.

Save the Date! Complimentary Webinar on May 11th: Are You Compliant with the ADA’s Current Guidelines?

Join Michael Wong on Thursday, May 11 at 12:00 PM CT for the latest installment of our Labor & Employment Quarterly Series as he discusses ADA compliance for businesses and in the workplace. Over the past few years the courts, EEOC and U.S. Department of Justice have broadened the scope of the Americans with Disabilities Act (ADA) to increase the expectations on business owners, HR professionals, and supervisors – including through the broad interpretation of what is a disability, what information puts supervisors and businesses on notice of an employee’s disability, and the requirement that private businesses have accessible websites.

What does this mean for HR professionals and business owners? Join Michael Wong as he covers:

  • The ADA Interactive Process and reasonable accommodations
  • ADA website compliance
  • How to limit exposure and liability

Click here to register for this webinar!