With the first doses of the COVID-19 vaccine being administered in America, employers are wondering what their role is when it comes to vaccination and what they can and can’t do. Now they have some clarification, as the Equal Employment Opportunity Commission this week released guidance for organizations and the COVID-19 vaccine.
Here are some highlights of the guidance, published Wednesday.
Employers may generally request that the employees provide supporting documentation to support exemption requests for disability or religious reasons.
Employers can exclude unvaccinated employees from the workplace. If no reasonable accommodation is possible and the employee is unable to be vaccinated, the EEOC states that the employer may “exclude the employee from the workplace.” The EEOC notes “this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state and local authorities.”
Employers can ask employees to show proof of receipt of a COVID-19 vaccination. Employees receiving a COVID-19 vaccine approved or authorized by the FDA will not be considered a “medical examination” for purposes of the Americans with Disabilities Act, meaning employers can ask employees for proof of a vaccine. (The ADA places limits on employers’ ability to make workers take medical tests or otherwise seek out medical information about them.) However, employers must be cautious about pre-screening vaccination questions, which may violate the ADA’s provision on disability-related inquiries, “which are inquiries likely to elicit information about a disability,” the EEOC said in its guidance. “If the employer administers the vaccine, it must show that such pre-screening questions it asks employees are ‘job-related and consistent with business necessity.’”
The complete guidance can be found here.