Tag Archives: EEOC guidance on COVID-19

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). 

EEOC Updates COVID-19/ADA Guidance As We Move Toward Reopening the Economy

Contributed by Carlos Arévalo and Suzanne Newcomb, April 17, 2020

Back on March 18th as we were entering the COVID-19 health crisis, we addressed EEOC guidance on the impact of the ADA on COVID-19 preventative measures.  Fast forward to today, as our collective focus shifts to talk of “re-opening the economy,” the EEOC has updated its guidance.  Uncertainty abounds as to whether it will be business as usual or a new normal.  Undoubtedly though, employers will need to be mindful to avoid ADA pitfalls as restrictions are lifted, furloughed workers return and/or as new hires are brought onboard. 

The EEOC’s updated guidance addresses the following areas (new and revised information in bold):

Disability-Related Inquiries and Medical Exams

  • Our prior guidance regarding questioning employees about COVID-19 symptoms, measuring temperature, requiring employees with symptoms to stay at home and asking them to provide doctor’s notes is unchanged.
  • Employers can still ask employees to disclose whether they are experiencing COVID-19 symptoms.  The list of symptoms has been expanded, and may continue to expand, as experts learn more (symptoms now include loss of smell/taste and gastrointestinal problems).
  • As the burden on health care providers is lightened, it will become easier to require employees to provide doctors notes and fitness-for-duty documentation.  Of course, as we recommended before, employers should follow CDC and WHO guidelines on this issue.

Confidentiality of Medical Information

  • Consistent with the ADA and our prior guidance, any medical information, including temperature checks, must be kept confidential and stored in employee’s medical files (kept separately from personnel files).
  • Information may be disclosed to local public health agencies.
  • Staffing agencies may disclose information of any affected individual to employers.

Hiring and Onboarding guidance

  • When hiring, employers may continue to screen or conduct medical examinations following a conditional offer, bearing in mind that candidates may still be asymptomatic.
  • Start dates may be delayed.
  • Offers may be withdrawn if an individual is unable to start right away as a result of a COVID-19 diagnosis or symptoms.

Reasonable Accommodation

  • Individuals might require accommodation because their disability makes them particularly vulnerable to COVID-19. This could give rise to new forms of accommodations. Examples given include one way aisles and plexiglass or other physical barriers to provide protection and/or ensure distancing.  
  • Pandemic might exacerbate some disabilities such as anxiety, OCD and PTSD.
  • The duty to provide reasonable accommodation can extend to any work environment.
  • Temporary changes prompted by the pandemic (including work from home) can give rise to (or eliminate) the need for reasonable accommodation or alter the effectiveness of an accommodation provided previously.
  • Employees can still be asked to substantiate disability and need for accommodation.
  • As always, engage with employees to assess accommodation needs and undue hardship on a case by case basis, given the particular circumstances. 

Pandemic-Related Harassment

  • Harassment based on an individual’s race or national origin, or other legally protected characteristic, must not be tolerated. Enough said.

Furloughs and Layoffs

  • Reminder that special rules apply when severance or other benefits are offered to a group of employees in exchange for a release – a reference to the OWBPA requirements for group terminations. The law here has not changed.

Return to Work

  • As stay-at-home orders or other restrictions are lifted, employers will still be able to take action pursuant to EEOC, CDC and/or state health officials’ guidance.
  • Disability-related inquiries and medical exams will be appropriate if job-related and consistent with business necessity.
  • As with any ADA analysis, employers will be able to exclude employees with medical conditions that pose a direct threat to the health or safety of others.
  • Employers will need to review CDC guidelines with respect to returning employees, including those deemed “critical workers.” 
  • Employers will need to work with returning employees about protective equipment requirements and infection control practices.
  • Employers will need to engage in the interactive process with any employees seeking ADA reasonable accommodations regarding protective equipment, i.e. non-latex gloves, modified facemasks, or religious accommodations under Title VII (modified equipment due to religious garb).