With the recent FDA approval of two new COVID-19 vaccines, many experts are now saying that there’s a light at the end of the tunnel when it comes to the pandemic.
Vaccinations are being administered to healthcare workers right now, with staged rollouts to frontline workers, high-risk populations and the general public. The rollouts are predicted to continue until late 2021. After nearly a year of workplace disruptions, including scrambling to figure out work-from-home options, and with many businesses still struggling to stay open or retain their employees, the vaccine means that things might start returning to normal.
But what, if anything, do employers need to know about the vaccine?
As it turns out, quite a lot, according to the Equal Employment Opportunity Commission (EEOC), which already has a comprehensive EEOC COVID-19 site dedicated to what employers need to know about COVID-19.
The site includes information on reasonable accommodations, hiring and onboarding, layoffs and furloughs, pandemic-related discrimination, and more helpful guidance for workplaces in such an unprecedented time.
The section on Vaccinations (K) is broken down into nine subsections in a Q&A format. Here’s the necessary information employers need to know (we’ve simplified and summarized the questions and answers) from each subsection.
Are Employers Being Required to Make Vaccines Mandatory?
No. The decision to require employees be vaccinated will be up to the employer. But if a workplace does require it, the EEOC wants to ensure they’re working within the law regarding employee disclosures around medical information, and what actions employers can take if they have employees who are unable or unwilling to take the vaccine.
Will Employees Be Required to Disclose Information?
Unfortunately, the answer to this question isn’t a simple one. Basically, employers who just administer a vaccine (or contract a third party to do so) have really no cause for concern that they’re in violation of any EEOC laws. It’s when employers want to know information about an employee’s medical history before they administer that vaccine, or ask about an employee’s medical history as to why they didn’t get a vaccine, where they need to be very cautious.
Are There Any ADA Compliance Issues Employers Might Encounter?
If employers do administer the vaccine, they need to be aware of situations where employees may be asked questions that will reveal a disability. Again, there’s little concern if the employer is simply administering the vaccine. But if the employer requires pre-screening questions before administering the vaccine, those questions need to be held to the ADA standards for disability-related inquiries.
Are There Any Concerns Around Employers Asking for Proof of Vaccination, or Seeing That An Employee Hasn’t Gotten One?
An employee may not get a vaccine for a number of reasons, which are not necessarily disability-related. Asking for proof in and of itself would not force an employee to disclose a disability. If an employer does ask why they didn’t get a vaccine, however, that question may be subject to ADA considerations.
What If An Employee Is Unable to Be Vaccinated Due to a Disability?
This depends on whether the unvaccinated employee would pose a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” In other words, is it a “direct threat” to have an unvaccinated employee at the workplace? If there is a direct threat, the employer must provide reasonable accommodations, but these need to be evaluated on a case-by-case basis.
What If An Employee Is Unable to Be Vaccinated Due to a Religious Practice or Belief?
Similar to above, the employer must provide a reasonable accommodation for the employee based on their religious belief, as per Title VII of the Civil Rights Act.
What If the Employer Can’t Provide a Reasonable Accommodation for the Above Two Cases?
If no reasonable accommodation can be found for the employee, the employer is lawfully allowed to exclude the employee from the physical workplace. But this doesn’t mean that the employee can be terminated.
Are There Any GINA Compliance Issues Employers Might Encounter?
In most cases, administering a vaccine will not implicate Title II of the Genetic Information Nondiscrimination Act (GINA), which states that employers can’t collect genetic information. But employers need to check any pre-screening questions that ask about genetic information and make alternative options available for certifying proof of vaccination if they find those questions.
How Do I Stay Updated?
The distribution of the vaccine is a sign that the pandemic may be coming to an end in the next few months, and will be key to getting workplaces back to functioning like normal. But employers still need to be aware of federal laws regarding medical and health information disclosures associated with the vaccine and should be sure to continue addressing cases for reasonable accommodations as they occur. Finally, employers should continue to check the EEOC website for further explanations, guidance, and updates about COVID-19 to ensure they keep their workforce healthy and safe.