By John Winer
“Have you been vaccinated for Covid-19?” It’s a question employer may be tempted to ask as employees begin to return to the workplace. But is it necessary for a safe work environment or a violation of workers’ medical privacy?
It’s an issue that raises legal and ethical questions as business owners and employers prepare safe “return to work” plans. So, can an employer require an employee to get a vaccine before they’re allowed to return to the workplace?
The Equal Employment Opportunity Commission (EEOC) is offering guidance. It says employers can legally require employees to be vaccinated with two primary areas of exception.
The first exception involves disability considerations. Perhaps an employee has allergies involving the vaccine ingredients. Maybe an employee is pregnant or nursing and their doctor has discouraged them from being vaccinated. The EEOC guidance points to the ADA qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” This means the employer “must show that 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 reasonable accommodation.” 29 C.F.R. 1630.2(r).
In other words, an employer can determine that an unvaccinated employee can expose others to the virus at the worksite. Employers are obligated to try to accommodate the employee, but if there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace.
The next exemption is for religious considerations. Once again, the EEOC reminds employers of their obligation for reasonable accommodations. If no accommodation that reduces the risk of harm to others is possible, the employer is legally allowed to exclude the unvaccinated worker from the workplace.
But, even with this guidance, the EEOC points out that excluding a worker from the workplace doesn’t trigger automatic termination of that employee. Those cases need to be evaluated to see if other rights apply under the EEO laws or other federal, state, and local laws.
As for asking the question, “Have you been vaccinated?”: Does that question violate the medical privacy rights of an employee? The answer, according to the EEOC, is no. The agency says not only can employers ask, but they can also require proof of vaccination. What the guidance warns against, however, is that employers must be careful with their questions in situations where vaccines are voluntary and not required for the job. Questioning an employee about why they opted not to be vaccinated could venture into medical information that is protected by the ADA.
Communication with workers is key. Let them know the strategy and expectations for keeping the workplace safe. And remember that vaccination policies can change in the future. As everything that has evolved in the past thirteen months of this pandemic—non-mandatory vaccination policies can become mandatory if warranted and the reverse may become a possibility sometimes too.
There’s a balance between protecting workplace safety and workers’ medical privacy. Careful policies and communication along with safety protocols will help bring an end to the pandemic. With the noted exceptions and restrictions, employers can ask about vaccination status and require vaccines as a condition of employment.