Employers are permitted to require that employees obtain vaccination from COVID-19 under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act, and the Genetic Information Nondiscrimination Act (GINA) per recent guidance issued by the Equal Employment Opportunity Commission (EEOC). 

In the sections below, we explain your obligations for confidential maintenance of medical records, what to do if an employee says that they cannot be vaccinated because of disability or religion, and some refreshers about health screenings, employee travel over the holidays, and excluding employees from the workplace that have symptoms associated with, have tested positive for, or have been exposed to someone with COVID. 

Vaccine-Related Medical Records

The ADA requires that employers maintain all employee medical information confidentially and in a separate file apart from the employee’s personnel file. Employers are permitted to require proof of vaccination from their employees. If the employee has not been vaccinated, the employer may question why they did not receive a vaccination but must take care that such questioning meets the standard of “job-related and consistent with business necessity” as such questioning may elicit disability-related information, and therefore, implicate the ADA.

If you choose to administer COVID vaccines to your employees “in-house” or on-site, there are requirements you’ll need to be aware of to administer pre-vaccination screenings under the ADA. Consult the EEOC website or your attorney if you plan to execute a vaccination plan yourself. 

Employee Unable to Receive Vaccine Because of a Disability

If an employee states that they cannot obtain a COVID vaccine because of a disability, the employer must conduct an individualized assessment of the situation to determine if an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by a reasonable accommodation.” Employers should consider four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to COVID at the worksite. 

If an employer determines that an individual, who cannot be vaccinated due to a disability, poses a direct threat at the worksite, the employee may only be excluded from the workplace if there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce the risk so that the unvaccinated employee does not pose a direct threat. If the direct threat cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but that does not mean the employee can be terminated automatically. The employee may be entitled to an accommodation to perform their current position remotely or may be eligible to take leave under the FFCRA, FMLA, or under the employer’s policies. Always consult with your attorney prior to taking adverse employment action against an employee with a disability and subject to the ADA. 

Employers must clearly communicate vaccine requirement policies, including how to request an accommodation due to a disability. Employers and employees requesting accommodation should engage in an interactive process to determine what reasonable accommodation may be provided, including obtaining documentation about the disability from the employee’s doctor. 

Where accommodation is not possible given the employee’s particular job duties, the employer should consult applicable OSHA standards and guidance and also consult the Job Accommodation Network (JAN) website as resources for different possible accommodations. Additionally, employers should consult an attorney prior to taking any adverse employment action against that individual (Resources below).

Employee Unable to Receive Vaccine Because of a Sincerely Held Religious Practice/ Belief

Once an employer is on notice that an employee’s sincerely held religious belief or practice prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation unless it would pose a hardship under Title VII. Employers should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief unless the employee has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance; then the employer would be justified in requesting additional supporting documentation.

If a reasonable accommodation cannot be provided, it would be lawful for the employer to exclude the employee from the workplace but cannot automatically terminate the worker. Employers should consult with their attorney to determine if any other rights apply under the EEO or other federal, state, or local authorities prior to taking any adverse employment action.

Employee Refuses Vaccination for Any Reason Not Protected by Law

If an employee refuses to be vaccinated for any reason other than reasons protected by law, as above, such as being “anti-vax” or otherwise, the employer may exclude the employee from the workplace. The employer is not required to seek out or provide accommodation in this case. It is always recommended that you consult with your attorney prior to termination. 

Protecting Your Workforce: Reminders to Get Through the Holidays/Winter

• Employers are permitted to ask employees who will be physically entering the workplace if they have COVID symptoms or if they’ve been tested for COVID. Employers are permitted to prohibit employees experiencing symptoms associated with COVID from entering the workplace as their presence would pose a direct threat to the health and safety of others. 

• If employers have a reasonable belief based on objective evidence that an employee may have COVID, they may question that employee (from a safe distance) about COVID symptoms, check their temperature, or require them to undergo testing (This applies to questioning a particular employee on an individual basis; all of this is permitted if applied to all employees, as above, but singling out an individual employee for questioning requires a reasonable belief based on objective evidence).

• According to GINA, employers are prohibited from asking employees medical questions about family members; however, employers are permitted to ask employees whether they have had contact with “anyone” diagnosed with COVID or experiencing symptoms.

• If an employee refuses to permit an employer to take their temperature or to answer questions above COVID symptoms or testing, the ADA allows the employer to bar the employee from physical presence in the workplace. The employer may wish to ask the reasons why the employee will not cooperate so as to provide reassurance to gain cooperation, such as explaining why the measures are being taken, describing how such measures are consistent with CDC recommendations, and reassuring that all medical information will be kept strictly confidential. 

• If an employee who works on site is absent from work or calls off sick, employers are permitted to ask about their symptoms and/or why they didn’t report to work as part of its workplace health screening and contact tracing strategies. 

• If the CDC, state, or local public health officials recommend that people who visit specified locations remain at home for a period of time after travel, an employer may ask whether employees are returning from these locations, even if travel was personal. This is especially relevant as individuals travel over the holidays, thus increasing the threat to the health and safety of others in the workplace posed by holiday travelers and gatherings. 

Resources:

JAN: https://askjan.org/topics/COVID-19.cfm

OSHA: https://www.osha.gov/coronavirus