The rolling out of the COVID-19 vaccinations has sent renewed hope across the country. Everyone is looking toward a return to normalcy. Businesses are looking toward a return to normalcy and having all employees back in the workplace. Some employers may even be requiring COVID-19 vaccination before an employee returning to the workplace. On December 16, 2020, the Equal Employment Opportunity Commission issued critical guidance to employers looking to put in place a mandatory COVID-19 vaccination policy. Here, we will review the guidance in more detail.
EEOC Guidance on Communicating with Employees About COVID-19 Vaccination Status
In the guidance issued by the EEOC, there was a focus on the potential implications for employers requiring employees to receive a COVID-19 vaccination under the Americans with Disabilities Act (ADA), as well as Title VII of the Civil Rights Act (Title VII) and the Genetic Information Nondiscrimination Act (GINA).
While the guidance does confirm that employers can require employees to receive a COVID-19 vaccination as a condition of employment under certain circumstances, the guidance also lets employers know to be cautious in their approach to confirming vaccination status, among other related issues. One of the central potential problems recognized under the EEOC guidance is employers that contract with vaccine providers as opposed to having employees get vaccinated from a third-party and confirming the vaccine after the fact. You see, pre-screening vaccination questions can implicate provisions of the ADA. Questions on any medical reasons preventing a person from receiving the vaccination can run afoul of ADA protections if asked directly by an employer or by someone contracted by the employer.
To avoid this issue, the EEOC guidance recommends employers allow employees to go through a third party to receive the COVID-19 vaccination. Furthermore, the guidance confirms that doing so and requesting proof of COVID-19 vaccination from employees would not violate the ADA’s restriction on disability-related inquiries posed by an employer. The EEOC also communicated that employers who intend to require COVID-19 vaccination should be prepared to communicate expectations to employees. Any medical information an employer obtains as a result of a vaccination program must remain confidential.
To help avoid any violations relating to Title VII or GINA, employers, managers, and supervisors should be trained and have protocols in place to appropriately respond to any requests for disability or religious accommodations requested by employees. This should include an interactive process as well as an individualized assessment of each request. Failure to do so before concluding that an unvaccinated employee cannot return to the workplace could raise several issues. Should an employee seek reasonable accommodation, an employer should be prepared to review potential leave for the employee or other options.
Employment Law Attorneys
As the distribution of the COVID-19 vaccine expands, there will be more and more legal issues that arise in regards to the employment context. For questions on your rights as an employee or your responsibilities as an employer, talk to The Rankin Law Firm. Contact us today.