Over one year into the global COVID-19 pandemic, essentially every adult in the United States who wants a vaccine can finally get one.
As our population’s vaccine rates increase and case rates (hopefully) continue to go down, restrictions are being lifted and a return to normalcy is in sight.
Including, for those employees unceremoniously sent home last spring, when businesses shifted to remote working policies, a return to the office.
These developments have many asking, “So what’s next?”
Setting aside whether an employer can (or should) require employees to be vaccinated, or whether “vaccine passports” are a sound idea –can an employer require that you disclose your vaccination status?
Can that employer require its employees to provide proof that they have been vaccinated?
The answer from the Equal Employment Opportunity Commission (“EEOC”) is clearly yes.
The EEOC reviewed this question in conjunction with the requirements of the Americans With Disabilities Act (“ADA”)
The EEOC’s recent guidance indicated that requiring proof of vaccination is “not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.”
The EEOC took pains to emphasize, though, that in asking whether an employee has been vaccinated, employers should not ask additional follow-up questions that may elicit information about an employee’s medical information or potential disability.
That could yield an ADA violation.
Why, given these requirements, would an employer even want to know if employees have been vaccinated?
Perhaps to see if a “critical mass” of employees have received vaccines, such that returning to the office is relatively low risk or other safety measure can be relaxed.
Or, as the Centers for Disease Control modifies its guidance for vaccinated and unvaccinated people, to know whether an employee must quarantine before or after domestic travel.
An employer should have a legitimate business reason—not mere curiosity– for the inquiry.
And any inquiry should end after the employee answers the question with a simple “yes” (and copy of vaccination record) or “no.”
Employers requesting proof of vaccination should store such records securely with other private employee information.
If you have questions about proof of vaccination requirements, contact your FOS attorney.