To Require or Not Require COVID Vaccination?
Mandatory COVID-19 vaccination for employment is still something that the majority of U.S. employers have not required. However, as an employer, it is wise to come to your own decision. In doing so, it is important to understand your rights and the legalities involved with mandating employee vaccination.
According to a JD Supra article released June 1, 2021, the EEOC has updated its guidelines for employers.
Can Employers Require Employees to Be Vaccinated?
The answer is yes, but certain conditions must apply. For example, employers must make reasonable accommodations for employees with disabilities or religious objections. Accommodations might include allowing an unvaccinated employee in the workplace as long as the employee:
- Wears a face mask
- Maintains social distancing from others
- Works a modified shift
- Receives COVID-19 testing
- Does telework
- Could be reassigned to another position
Guidelines for Employers Requiring Mandatory COVID-19 Vaccination for Employment
Updated best practice guidelines include:
- Notifying all employees that the employer will consider accommodation requests based on disability or religious objection on an individual basis
- Inform employees unable to be vaccinated due to disability or religious objections that they are responsible for notifying the employer about their need for exemption
- Employers should train managers how to recognize a request for accommodation and who in the company should be informed about it
- Assessing whether the vaccine requirement could have an adverse impact on employees based on their race, color, religion, sex, national origin or age
A vaccination requirement may adversely affect some employees more than others, based on their demographic group. Employers should take this into consideration when planning mandatory vaccination. Pregnancy is a valid exemption from vaccination, and employers should make appropriate accommodations for pregnant workers. However, Equal Employment Opportunity laws do not prevent employers from requiring mandatory COVID-19 vaccination for employment. This is true provided that there are no ADA or Civil Rights violations.
Do You Have Concerns About Vaccination Policies Regarding COVID-19?
(Keywords: Voluntary COVID-19 Vaccine Programs for Employment)
Voluntary COVID-19 Vaccine Programs for Employment
Confidentiality of Vaccination Proof or Confirmation
Voluntary COVID-19 vaccine programs for employment are an option some employers are considering.
Employers who aren’t requiring employee vaccination still have the legal right to inquire whether an employee has received the vaccine. This does not violate disability law. However, they may not ask employees about their reasons for not getting vaccinated. Also, as long as employees agree to answer pre-vaccination questions voluntarily, this is legal, even when the employer provides vaccination directly or through an agent.
An underlying medical condition may entitle an employee to reasonable accommodations as long as there is no undue hardship for the employer. For example, some employees may be immunocompromised, and therefore the vaccine does not offer them the same protection.
The ADA and Confidentiality of Vaccination Proof or Confirmation
Vaccination is a medical record. Therefore, it falls under strict confidentiality requirements based on the Americans with Disabilities Act (ADA).
After the EEOC first released guidelines in December 2020, it recommended that employees should not include medical information when providing proof of vaccination. Questions arose as to whether proof of vaccination was medical information and therefore confidential under terms of the ADA. The EEOC affirms that it is.
Consequently, employers requesting vaccination proof must store the records separately from the employee’s personnel file. The following restrictions apply as far as sharing the information:
- When necessary for restricting the employee’s work or duties, employers may inform supervisors and managers
- If the disability requires emergency treatment, then first aid and safety personnel should be privy to the information
- Government officials investigating compliance issues can request the information
Do you have questions about voluntary COVID-19 Programs for Employment?
Legal aspects regarding vaccination and employment continue to emerge. It is wise to seek legal advice by discussing your concerns with an experienced employment law defense attorney. Call (718) 275-6500 to arrange an appointment with Stephen D. Hans & Associates, P.C.