Tag Archives: employees

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). 

Decision Reminds Employers to Think Before Speaking to Employees About Union Issues

Contributed by Suzanne Newcomb

On September 4, a Federal Appeals Court upheld a National Labor Relations Board (NLRB) decision finding management comments to employees during the early stages of a union organizing campaign unlawful. Section 8(a)(1) of the National Labor Relations Act makes it unlawful “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Section 7 rights include “the right to self-organization, to form, join, or assist labor organizations.” The NLRB and the Courts interpret this language broadly.

people shaking handsBack in 2011 rumors about a possible unionizing campaign prompted an in house attorney and regional HR director to meet with employees, one of whom secretly taped the meeting. Comments made during that meeting were found to unlawfully: (1) threaten by suggesting unionizing was futile; (2) imply a promise of pay increases if the employees did not vote for a union; (3) threaten that unionization would result in demotion for some employees; and (4) threaten blacklisting of union supporters.

The following comments by management officials during the meeting were found to unlawfully imply that unionizing was futile and would not produce the benefits sought:

  • Be “very careful” when listening to the union’s “sales pitch.”
  • “In many cases, when you enter these negotiations, if you ever get there, employees tend to lose things.”
  • Negotiations are “a wide open game of uncertainty” in which “nothing is guaranteed” even if the union wins the election.
  • Answering “it’s possible” when asked if unionizing would cause wages to decrease adding, “we start from scratch…we don’t start with what you guys are making today.  Everything goes to zero.”
  • Employees at a unionized location have gone nearly three years without a bargaining session or contract. The bargaining process is “never automatic” and employees might never see the benefits they seek.

The finding of an unlawful implied promise to raise wages arose when, in response to an employee’s specific request, management agreed to review the current pay structure to ensure it was fair and competitive adding, “we want a chance to address … [your concerns] before you pay somebody else to address them.”

Management’s answer to questions about the apprentice and journeyman system was found to be an unlawful threat to demote certain employees if the workforce unionized. Finally, reference to union membership as a “scarlet letter,” and suggestions that other employers might be less inclined to hire job applicants who had worked in a union shop, were deemed unlawful threats to blacklist employees for union activity.

As the Court stated, “the underlying message…is that an employer…needs to take care in the rhetoric it uses when discussing union issues with its workers.” Employers must be very careful when discussing union related matters with their employees. Special and careful considerations must be paid to developing labor law. Detailed scripts, approved through seasoned labor counsel, should be in place to ensure appropriate language is being communicated.