With more and more businesses taking the first steps to reopen as the pandemic begins to wane, I have been getting this question from more and more of my clients: Can we ask our employees to provide proof that they have been vaccinated against COVID-19? The answer is that an employer may indeed ask that question and make that inquiry, but employers must be careful regarding how far they probe into that question.
The Equal Employment Opportunity Commission (“EEOC”) has taken the position that asking someone whether they are fully vaccinated does not result in the disclosure of an employee’s medical information, so asking such a question is fair game for an employer. In the EEOC’s view, just asking the question is not a medical exam because there could be many reasons (other than, for example, employee health issues) that may be why an employee has not been vaccinated. Where you as an employer will need to be cautious is when you start asking questions beyond the vaccination proof issue, such as why the employee is not vaccinated. There you might be treading too close to asking improper questions about an employee’s medical status. If you find yourself in that territory, you will have to evaluate the employee’s response within the framework of the Americans with Disabilities Act’s (ADA) (or Title VII’s, if the employee’s response implicates religious beliefs) requirement to justify proof of vaccination being “job-related and consistent with business necessity.” That can be a difficult standard to meet, so employers who wish to venture into this area would be wise to (1) strictly limit their inquiry exclusively to whether or not the employee is fully vaccinated; and (2) requesting proof of that vaccination, say asking for a copy of the vaccination card itself. That way you avoid getting into these medical issue topics, and you the employer would then keep any proof information you obtained from the employee confidential like you would with any other private information received on an employee.
As things continue to evolve, we expect to receive more guidance from the EEOC on what employers can do as part of their reopening efforts, and as that happens, we will provide further legal updates to assist employers in those reopening efforts.
Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.