Yes, You May Ask Employees About COVID-19 Vaccinations
Q Can we ask employees if they have received the COVID-19 vaccine?
A Yes. In short, employers may ask employees to tell (and show proof) whether they have been vaccinated.
In December 2020, the Equal Employment Opportunity Commission (EEOC) issued updated guidance confirming that asking an employee to show proof of receiving a COVID-19 vaccination isn’t a disability-related inquiry under the Americans with Disabilities Act (ADA). According to the agency, many reasons that may or may not be disability-related could explain why an employee hasn’t been vaccinated.
Therefore, simply asking employees if they’ve received the COVID-19 vaccine or requesting proof isn’t likely to elicit information about a disability. In other words, you can ask employees whether they’ve gotten the shots without having to demonstrate business necessity under the ADA.
Moreover, asking employees if they have received the COVID-19 vaccine isn’t a Health Insurance Portability and Accountability Act (HIPAA) violation. After all, HIPAA prevents healthcare providers from sharing information. Asking employees to share their own information doesn’t violate the Act.
Be careful with follow-up questions. Subsequent questions, such as asking why an individual didn’t receive a vaccination, may elicit information about a disability and could trigger your obligation under the ADA to justify that the information being sought is “job-related and consistent with business necessity.”
The same is true for follow-up inquiries that may elicit genetic details or information about an employee’s religious beliefs, as such questions respectively implicating the Genetic Information Nondiscrimination Act (GINA) and Title VII of the Civil Rights Act of 1964. Consequently, asking such questions would likely trigger your obligation to prove the information being sought is job-related and consistent with business necessity.
Bottom line. You may ask employees their vaccination status or request proof of vaccination without running afoul the law. You shouldn’t ask, however, why they weren’t vaccinated. Eliciting information about an employee’s disability, religious beliefs, or genetic information with follow-up questions places your company at risk of having to legally justify its inquiries and suffering costly litigation.
If you require employees to provide proof they’ve received a COVID-19 vaccination from a pharmacy or their own healthcare provider, be sure to warn them not to provide any medical information as part of the documentation to avoid implicating the ADA or other laws. And, as always, you should keep any medical information received in a file separate from the employee’s personnel file and in a secure location.
Article provided by content partner BLR. Author Marcus D. Black is an attorney with Steptoe & Johnson PLLC in Charleston, West Virginia.