Like most pandemic-related employment problems, the answer to this simple question is complex, multi-faceted, and evolving.
Recently one of our Facebook followers shared this important and interesting question with us:
“Can an employer ask workers if they have been vaccinated against COVID-19 and can they ‘out’ those who have and have not?”
Like most pandemic-related employment problems, the answer to this simple question is complex, multi-faceted, and evolving. But I am definitely ready to give an answer.
I would like to anticipate the discussion by reminding everyone of two important facts. First, employers are generally allowed to require all workers to be vaccinated. Second, workers who refuse to be disciplined and / or fired, unless protected by a union contract, have a disability, or refuse to get a shot because of genuine religious beliefs.
Employers must provide “reasonable accommodation” for people falling into the latter two categories to enable them to continue working.
Now let’s consider whether the American With Disabilities Act (ADA) allows employers to ask workers if they have been vaccinated. According to guidelines issued late last year by the Centers for Disease Control and Prevention and the Equal Opportunities Commission, the answer is yes as long as the investigation does not provide information about a disability that would trigger the ADA’s request that all inquiries “Job-related and in line with business needs.”
Tip for employers: You don’t want that.
To avoid violating the ADA, employers should do the following when requesting vaccination information:
• Design the request so that it is unlikely to produce information about a disability.
• Do not ask why an employee was not vaccinated.
• Warn employees not to provide medical information when presenting proof of vaccination.
Employers also have the right to ask for a number of reasons: to verify compliance with a vaccine mandate; prove that an employee has qualified for a vaccination incentive; determine whether an employee can return to work on site; Comply with a customer’s request that a vendor’s staff have been vaccinated; or to inform the public that workers at a restaurant, store, or other business that involves customer interaction have received their footage.
In fact, I can imagine that “Guaranteed COVID-19 Free” will become a popular advertising slogan in the coming months.
Now that we have a basic understanding of what employers can do, it is time to look at what they may not do: they cannot “out” or identify workers who have or have not been vaccinated.
While it is generally legal to ask the question, it can be viewed as a medical examination where each employee’s response contains confidential medical information that is protected under statutory and common law. The law also obliges employers to protect employees’ personal and health data, including their vaccination status.
I urge employers to take all necessary steps to meet this obligation.
As I mentioned at the beginning of the column, COVID-19 labor law is evolving rapidly so companies and workers should protect themselves by staying informed of their rights and obligations.
While the pandemic is hopefully coming to an end, it can take years to resolve the legal issues and litigation it has created. I will do my best to keep my readers updated.
– – Lawyer David Betras, A Senior Partner at Betras, Kopp & Harshman LLC., Directs the firm’s non-litigation activities and practices criminal law in both state and federal courts. He has been a lawyer for 35 years. Do you have a legal question that you would like to answer here? Send it to [email protected].
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