Require Proof of Vaccination?

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Question

Can a business require employees to show proof they are vaccinated against Covid-19? If the employee is not vaccinated or refuses to show proof of vaccination can the business legally require those employees who are not vaccinated or refuses to show proof of vaccination to wear a mask inside the business? 

Answer

Within the guidelines set forth by the federal Equal Employment Opportunity Commission (EEOC), employers are not prohibited from asking applicants and employees whether they have received the COVID-19 vaccine and if they have, can also request receipts of such vaccinations. We recommend reviewing this guidance which can be found at section K HERE), particularly at question K.9. which provides:

"K.9. Under the ADA, is it a 'disability-related inquiry' for an employer to inquire about or request documentation or other confirmation that an employee obtained the COVID-19 vaccine from a third party in the community, such as a pharmacy, personal health care provider, or public clinic? (12/16/20, updated 5/28/21)

No. When an employer asks employees whether they obtained a COVID-19 vaccine from a third party in the community, such as a pharmacy, personal health care provider, or public clinic, the employer is not asking a question that is likely to disclose the existence of a disability; there are many reasons an employee may not show documentation or other confirmation of vaccination in the community besides having a disability. Therefore, requesting documentation or other confirmation of vaccination by a third party in the community is not a disability-related inquiry under the ADA, and the ADA’s rules about such inquiries do not apply.

However, documentation or other confirmation of vaccination provided by the employee to the employer is medical information about the employee and must be kept confidential."

Thus, an employer can ask about COVID-19 vaccination statuses and for proof of the same if employees or applicants indicate they are so vaccinated. To the extent the employer will seek to make inquiry about COVID-19 vaccination status, it should do so individually and not in a group setting, and make such inquiry of all employees and/or applicants and not just some without others. The employer should determine the appropriate representative/agent to make such inquiries of employees if it does so. Individual managers or supervisors can be tasked with securing this information, or perhaps HR personnel may do so. Regardless, the employer has an obligation to ensure that those asking the questions and receiving the answers do so in a manner that maintains confidentiality as required by law. Indeed, question K.4. at the link above provides:

"Is information about an employee’s COVID-19 vaccination confidential medical information under the ADA?" (5/28/21)

Yes. The ADA requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination. This ADA confidentiality requirement applies regardless of where the employee gets the vaccination. Although the EEO laws themselves do not prevent employers from requiring employees to bring in documentation or other confirmation of vaccination, this information, like all medical information, must be kept confidential and stored separately from the employee’s personnel files under the ADA."

For more information, please click HERE.

The EEOC also supports employers that seek to require employees to be vaccinated as a condition of employment, so long as employers provide reasonable accommodations under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) based on any one or more employees' sincerely held religious beliefs or disability, respectively. In this regard, the EEOC guidance first linked above at question K.1. provides in part:

"Under the ADA, Title VII, and other federal employment nondiscrimination laws, may an employer require all employees physically entering the workplace to be vaccinated for COVID-19? (5/28/21)

The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below. These principles apply if an employee gets the vaccine in the community or from the employer. … In some circumstances, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business. The analysis for undue hardship depends on whether the accommodation is for a disability (including pregnancy-related conditions that constitute a disability) (see K.6) or for religion (see K.12)..."

As to masks and facial coverings, note as well that the Center for Disease Prevention and Control (CDC) issued guidance relaxing mask requirements for individuals who have been "fully vaccinated" against COVID-19 (see https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html). Bear in mind also that employers have long had an obligation under occupational safety and health laws to provide and preserve a safe and healthy workplace. Accordingly, employers should consult counsel before making determinations about the propriety of abandoning mask usage for personnel when at work indoors and/or on company property, and particularly as to employees who are not vaccinated or refuse to disclose their vaccination status. The federal Occupational Safety and Health Administration (OSHA) has updated its guidance following the recent adjustments by the CDC HERE which you may wish to review for more information.

Some states and locales have also passed legislation and/or issued guidance regarding mask usage and/or mask abandonment in the workplace. You will want to confer with local counsel in your jurisdiction for specific legal advice and to ensure compliance within your organization. 

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Published Date:August 17, 2021

Categories: HR Question of the Month