During the early days of the Covid-19 pandemic the promise of a vaccine and a return to normalcy was the light at the of the tunnel. A year later the ability to receive a vaccine is becoming rapidly available to people in almost all age groups, including your employees. However, with the increased ability to receive the vaccine comes a new question – can you ask your employees if they’ve had the vaccine?
The short answer is yes, but as always, there are some important considerations. The EEOC’s position is that simply asking an employee for proof they’ve received a Covid-19 vaccination is “not likely to elicit information” about a disability. Therefore, asking this basic question,
“have you been vaccinated,” would not be prohibited. However, an employer may find itself on dangerous ground if you ask further questions. Here’s why.
If an employee says that they have not received the vaccine, the next logical question might be, “why not?” Unfortunately, this is where employers may unknowingly become tangled in the various obligations under the ADA because the employee’s response may provoke an answer that provides information about a disability.
For example, the employee could answer the question of “why not” by saying that they haven’t had time to schedule an appointment or don’t believe in the vaccine. However, it is also possible that the employee might say they haven’t received a vaccine because of a disability. This second answer, unintentionally, has transformed the employer’s simple question into a disability related inquiry.
Under the law, disability related inquiries are only allowed if they inquiry was “job-related and consistent with business necessity.” So, unless you can demonstrate why the follow-up question was “job related and consistent with business necessity,” this simple question can land you in hot water. The best way to avoid unintentionally running afoul of the ADA is simply to not ask the follow up question and make it clear that you are not looking for any medical information in their answer or in any proof of being vaccinated they may provide.
The light at the end of the Covid-19 tunnel is almost here; don’t let that light turn into an oncoming train by inadvertently asking one too many questions.
If you have questions about vaccinations and your employees, we recommend you contact an experienced employment attorney.
This blog was written by Eric Tiritilli.