The EEOC promulgated guidance as it relates to vaccinations in the employment arena. (NOTE: This blog is the first in a series regarding what employers need to know about vaccinations.) This blog focuses on the following specific inquiry:
Can employers request proof that an employee received the COVID-19 vaccine? If so, how can an employer request such proof and limit liability?
Let’s start with the basics…
FIRST: The CDC makes it clear that requesting the proof of the receipt of vaccination is not a disability related inquiry that triggers the American with Disabilities Act (“ADA”). Simply requesting proof from a healthcare provider or pharmacy is not itself a Disability Related Inquiry (“DRI”). It is not considered a DRI, because the request of proof does not itself elicit medical information from the employee. The request simply asks the employee to submit proof of vaccination. Nothing more.
So…Employers can request proof as to whether an employee obtained a vaccine.
BUT…Employers must beware that requesting proof of a vaccination can turn into a DRI quickly thus triggering the ADA. Let’s delve deeper…
SECOND: While simply asking whether an employee obtained the COVID-19 vaccination is not itself a DRI, follow-up questions from the employer inquiring as to perhaps why the individual did not get the vaccine may be considered a DRI. Follow-up questions may be considered a DRI, because they may elicit medical information from the employee.
Briefly, the ADA prohibits a Covered Entity (business with 15 or more employees) from making inquiries to an employee “as to whether such employee is an individual with a disability or as to the nature or severity of the disability.” NOTE: DRI’s are allowed to the extent the inquiry is shown to be job-related and consistent with the business necessity. Employers may however conduct such inquiries into the ability to perform job-related functions.
The Federal Regulations are clear that a Covered Entity may require a DRI of an employee that is job-related and consistent with a business necessity. Covered employers can also make inquiries into the ability of an employee to perform job-related functions.
So…Why Does this Matter? Why Does it Matter if the Vaccine Confirmation turns into a DRI?
THIRD: If the process of confirming whether an employee obtained the COVID-19 vaccination turns into a DRI, then that triggers the ADA (assuming the business has more than 15 employees), and thus could potentially expose the business to liability under the statute. Employers cannot discriminate against individuals based on information obtained during a DRI.
The ADA provides that a Covered Entity shall not discriminate against a qualified individual on the basis of disability in regard to the job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment. This includes DRI’s.
…So What Does This Mean?
This means that while employers can request confirmation from the employees as to whether they obtained the vaccine, prudent employers must end the inquiry with that one question. Follow-up questions could expose an employer to liability under the ADA.
- Employer requests proof of receipt of the COVID-19 vaccine.
- Employee indicates that they did not obtain the vaccine.
- Employer follows-up with the question, “why didn’t you get the vaccine?”
- The Employee explains that they have an underlying medical condition that does not allow for them to obtain the vaccine.
- Employer terminates the employee.
RESULT: Employer is exposed to potential liability under the ADA. The follow-up question elicited medical information that triggered the ADA. The subsequent adverse employment decision could be seen as discriminatory based on that employee’s underlying medical condition.
The CDC explicitly guides employers that if they are going to require proof of vaccination, that they should specifically warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.
Employers should consult with counsel regarding requesting proof of vaccination. Stay tuned for the next blog that will discuss whether employers can require their employees get the COVID vaccine.
ABOUT SUSIE CIRILLI
Susie M. Cirilli is a Labor & Employment attorney that assists clients with issues involving the ADA, FMLA, and Title VII claims. Susie litigates on matters related to hostile work environment, discrimination based on sex, sexual orientation, pregnancy, race and disability. Susie has experience representing employers in fact-finding conferences and mediations before the PHRC and the EEOC. Susie’s practice also consists of counseling and advising clients on employment matters. She often advises employers on day to day employment matters and assists her clients on employee issues such as hiring and terminations, which includes drafting and negotiating separation agreements. Susie has experience drafting and revising employment agreements, employee handbooks, non-compete and non-solicitation agreements. Susie is admitted in the Middle District and Eastern District of Pennsylvania. She is also admitted in the Federal Court for the District of New Jersey.
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