Can employers ask about vaccination status?
According to the Equal Employment Opportunity Commission (EEOC), an employer may ask or require employees to state whether they have been vaccinated, or require proof of the vaccination from the employee. Consequently, some employers are opting to survey their workforces to ask who has been vaccinated and who has not. However, it is important for employers to follow certain guidelines when asking these questions.
First, if an employee informs an employer that they have not been vaccinated, the employer should not ask “why not.” This question may lead an employee to divulge sensitive information that should only be requested in the context of an accommodation process.
Second, the employer should establish a point of contact for handling vaccine and COVID-related issues and questions. Ideally this will be a human resources representative.
Third, although employers may ask about vaccination status, they should assess the best way to do so on a case-by-case basis. While an employer probably will want to know whether a significant percentage of its workforce is vaccinated to assist with return-to-office strategies, some employers may be deterred by expected employee pushback. In this scenario, employers could consider requesting information anonymously.
Finally, it is critical to remember that information regarding an individual’s vaccination status is, according to the EEOC, confidential medical information. Therefore, employers should ensure it is maintained confidentially and separate from personnel files.
What about applicants and contractors?
Employers may require applicants to be vaccinated even if they do not require the entire workforce to get vaccinated. However, the job posting should be clear on this point, and employers should understand that clarifying the vaccination requirement for applicants may deter employees who are not willing to get vaccinated.
If an employer chooses to require applicants to be vaccinated, it should not ask about vaccination status until after an offer is made. Indeed, if an applicant tells an employer that they aren’t vaccinated due to a disability or religious belief and then the applicant is not hired, the employer could find itself in a position where it may be accused of rejecting the applicant based on their disability or religious belief. Where an employer asks about vaccination status after extending an offer and the applicant states it is unable to be vaccinated due to a disability or a sincerely held religious belief, the employer must engage in an interactive process with the applicant to assess reasonable accommodations.
Employers may also ask contractors or third parties about their vaccination status. However, it may be more hassle than its worth to require proof of vaccine status because any documentation an employer retains must be maintained confidentially. Additionally, a downside to actually maintaining a contractor’s vaccine record is that it could be another data point in the event a contractor claims the employer is really a joint employer.
In some states, including Colorado – where the Colorado Anti-Discrimination Act (C.R.S. § 24-34-401) does not protect independent contractors from discrimination – employers do not need to treat contractors in the same way as employees. That is, even if an employer declines to implement a mandatory vaccine policy for its workforce, it could still require contractors to get vaccinated before they work on the employer’s premises.
Should employers mandate or incentivize vaccines?
Employers are grappling with whether to mandate vaccines, encourage vaccines, or stay out of the topic completely. The EEOC issued guidance on May 28, 2021 clarifying that, generally speaking, and subject to accommodations, an employer can lawfully require its employees to obtain a COVID-19 vaccination as a condition of returning to the workplace under the Americans with Disabilities Act (ADA) and the Genetic Information Non-discrimination Act (GINA). Even so, many employers are encouraging, but not requiring, their workforce to get vaccinated.
On May 28, 2021, the EEOC made clear that employers who wish to encourage, rather than mandate, COVID-19 vaccines may incentivize their employees to be vaccinated. If the employee may receive the incentive by presenting proof of vaccination by an outside source, there is no limit on the type or amount of incentive that can be offered. If, however, the employer only provides the incentive where the employer or its agent is administering the vaccine, the EEOC explains that the incentive cannot be “so substantial as to be coercive.”
Incentives typically include perks such as cash payments, credit for the employer’s goods, or paid time off. Some state laws actually require that employers provide paid leave for vaccines, including Colorado. Colorado implemented a COVID-19 Supplemental Paid Sick Leave that went into effect January 1, 2021 (the Healthy Families and Workplaces Act), which requires employers with at least one employee in Colorado to supplement employees’ balances of paid sick leave to ensure that each full-time employee may take up to eighty (80) hours of paid sick leave for absences from work related to a public health emergency, including absences to seek preventive care.
Can a mandatory vaccination policy apply to all employees?
Even where an employer requires vaccinations, it must consider exceptions for individuals based on disability, pregnancy, or religious beliefs.
Employers cannot exclude from the workplace any employees who cannot be vaccinated due to disability unless the employee’s presence onsite constitutes a significant threat of substantial harm, or “direct threat.” Employers must conduct an individualized inquiry based on current medical knowledge and factors such as the amount of interaction the employee has with others during the workday, available ventilation, and whether social distancing is practical. Where there is no direct threat, the employer must undergo an interactive accommodation process with the employee to evaluate reasonable accommodations that may allow the employee to perform the essential job functions of their position without getting vaccinated.
If an employee requests a reasonable accommodation due to a pregnancy-related medical condition, the employer must consider it under the Americans with Disabilities Act (ADA) rules. A pregnant employee may be entitled to job modifications, such as telework, and leave to the extent provided for other employees who are similar in their ability or inability to work due to a medical condition.
Finally, as with disability accommodation requests, employers have to undergo an “interactive process” with employees who have sincere religious objections to vaccination. They must provide an accommodation that allows the employee to return to work where doing so does not present an undue hardship and does not put the workplace at risk.
How does the CDC’s recent guidance affect return-to-work plans?
On May 13, 2021, the CDC released significant guidance changing its recommendations for fully vaccinated individuals. The CDC acknowledged that a growing body of scientific evidence
showed that vaccines prevent the spread of COVID-19, which justified significant relaxation of safety guidance for individuals who have been fully vaccinated. Accordingly, the CDC said that fully vaccinated individuals can safely stop a number of COVID-19 precautions including, for example, wearing face coverings, social distancing, quarantining after being exposed to infected individuals (unless symptoms develop), and obtaining routine COVID-19 tests as a screening measure.
Based on spikes across the U.S. of the COVID-19 Delta variant, the CDC modified this May 13th position, and, as of July 27, 2021, recommends masks in indoor public places for vaccinated persons in areas of substantial or high transmission. Whether to require masks is left to local public health agencies.
As of July 1, 2021, Colorado modified state guidance to require masks only for unvaccinated individuals in certain places, such as medical facilities and homeless shelters (with some exceptions, like public transportation). The City and County of Denver also adopted the state’s Order. So far, Colorado has not modified this position even in light of the CDC’s updated guidance.
Because applying this guidance turns, to some extent, on whether individuals have received the COVID-19 vaccination, it is beneficial to employers to know whether employees are vaccinated. For example, return-to-work plans may vary significantly if 95 percent of a workforce is vaccinated, as opposed to only 50 percent.
So, what should my company do with this information?
Unfortunately, there is no universally applicable policy. Every employer will need to consider factors such as its workforce, third parties, its physical workspace, and industry challenges.
Some employers may seek to implement a mandatory vaccine approach, which will likely prevent COVID-19 infections in the workplace. Conversely, some employers may take a conservative approach and maintain stringent safety requirements for all employees, including those that are vaccinated. This approach will prevent infections, but it is likely that employees will push back.
Another approach is to follow the changing CDC guidance and relax certain precautions, but only for fully vaccinated individuals in areas not designated as having “substantial or high transmission.” This approach appears relatively safe on its face, but it will require employers to overcome practical concerns, such as developing a plan to determine who is vaccinated and who is not, dealing with employees who are unvaccinated but who fail to abide by applicable safety rules, applying social distancing rules when some of the workforce is vaccinated and some is not, and enforcing the rules while maintaining confidentiality.
Whatever employers choose to do, they should watch closely to see what additional changes and requirements come out of states, localities, and federal agencies.
For more information about developing a return-to-work strategy or other issues related to the COVID-19 vaccine, please contact one of the authors of this article or the Hogan Lovells lawyer with whom you work.
Authored by Michael DeLarco and Eleanor deGolian Kasper.
