Employers and Vaccinations- What You Should Know:
With the ever-changing and evolving information being brought forth from many agencies, here is a quick recap on vaccinations in the workforce provided by the EEOC and helpful discovery questions to determine if implementing a vaccination policy is right for your organization.
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?
EEOC Answer:
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 with any employment policy, employers that have a vaccine requirement may need to respond to allegations that the requirement has a disparate impact on—or disproportionately excludes—employees based on their race, color, religion, sex, or national origin under Title VII (or age under the Age Discrimination in Employment Act (40+)). Employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.
It would also be unlawful to apply a vaccination requirement to employees in a way that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason.
Summary and Suggestions:
An employer can require employees to be vaccinated to enter the workplace. However, there are some considerations to think about prior to enforcing this type of policy.
- Is this policy in effect fairly and consistently implemented across employees in similar roles, departments, etc?
- Do all employees have equal access to vaccinations in a timely, costly, and geographically convenient manner?
- Do employees need to be vaccinated to run the operation safely and effectively? Is the requirement job-related and a business necessity? Are there other safety protocol alternatives employees can follow should they not want to be vaccinated?
- Do you have a process in place to vet reasonable accommodations for employees who cannot or do not want to get the vaccination for protected reasons?
- How will you determine if an employee has been vaccinated prior to entering in a safe, private, and confidential manner?
Is information about an employee’s COVID-19 vaccination confidential medical information under the ADA?
EEOC Answer:
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.
Summary and Suggestions:
While the EEO does not specifically state you cannot collect documentation of a Covid vaccination, there are safeguards to protect the employee’s information you should have in place prior to collecting this information.
- Do you have a method to store medical information in a confidential manner and separate from the employee’s personnel files?
- Is collecting the documentation of the vaccination essential, job-related, and a business necessity for safety?
- Have you already explored all methods of determining whether employees have been vaccinated and discovered keeping documentation is the best option?
- Is the employee responsible for keeping this documentation trained on confidentiality and protecting employee’s “PHI” Protected Health Information?
- Do employees have an alternative option to submitting this documentation should they feel uncomfortable with the current process in place?
Now that you have thought through these questions and determined whether or not a vaccination policy is essential to your organization, please visit the EEOC to read further on additional requirements to create a safe and compliant policy.
While there are many components and aspects to putting together a safe return to work plan during a pandemic that many HR professionals have never experienced in their lifetime, there is guidance at the federal, state, and local area to help you put the right plan in place for your business. Please check all guidelines prior to implementing a vaccination policy. This article is not intended to be used as legal advice.
Please refer to eeoc.gov for in-depth answers to the above summary:
https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws