The Equal Employment Opportunity Commission (“EEOC”) has stated that businesses can in fact require their employees to receive vaccinations for COVID-19. Requiring the vaccine does not violate any EEOC law. In addition to being able to require vaccination, employers can also offer incentives to employees in exchange for getting vaccinated or providing proof of vaccination. However, the EEOC clarified that these incentives cannot be coercive; employees cannot feel that they have no choice but to comply. [1]
The EEOC has also updated its guidance to include that, during the COVID-19 pandemic, employers must continue to provide reasonable accommodations under Title VII of the Civil Rights Act, Title I of the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act. Reasonable accommodations also apply to employees who will not get vaccinated due to disability, religious beliefs, or pregnancy. Employers must follow the usual accommodation process under federal and local laws, which also applies to employees requesting an alternative method of screening due to a medical condition. Employers can choose to make an easy and inexpensive requested change available to anyone who asks. Employers can also ask an employee for information to establish that their condition is a disability if it is not already known or obvious, and they can also ask what specific limitations require an accommodation. Employers can also request medical documentation. [2]
In addition to requiring the COVID-19 vaccine, ADA-covered employers can also request certain information from employees during a pandemic. While the COVID-19 pandemic is still ongoing, for instance, employers can ask about symptoms, such as fever, chills, cough, sore throat, and shortness of breath. Employers must ensure that all information obtained about employee illness must be maintained as a “confidential medical record” in compliance with the ADA. Employers may administer COVID-19 testing or require a doctor’s note certifying fitness for duty. Employers cannot, however, require employees to undergo antibody testing in order to re-enter the workplace because an antibody test is considered a medical examination under the ADA. [3] Any testing performed at work must also comply with HIPAA regulations; Protected health information that is created, maintained, received, or transmitted by the business’s group health plan falls under HIPPA and must be safeguarded and remain confidential. [4]
Employers can ask for COVID-19-related information from customers as well. Legal experts have stated that employers are not violating federal laws when asking customers (or employees) about their vaccine status. Although social media posts have claimed that doing so violates the Fourth Amendment or the 1964 Civil Rights Act, such claims are not true. The Fourth Amendment applies to searches and seizures done by the government. A law professor specializing in public health law at Georgetown University, Lawrence Gostin, has explained that the Fourth Amendment does not apply to businesses asking for proof of vaccination. [5]
[1] Julia, Thompson, “Can employers require a COVID-19 vaccine? Federal agency says yes, and they can offer incentives, too”, USA Today, 31 May 2021, https://finance.yahoo.com/news/employers-require-covid-vaccine-federal-154603394.html, acc. 9 June 2021.
[2] “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”, EEOC, updated 28 May 2021, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws, acc. 9 June 2021.
[3] Ibid.
[4] EBIA, “Does HIPAA Apply to Employers’ Requests for Temperature Checks and Other COVID-19-Related Health Information?”, Thomson Reuters, 28 May 2020, https://tax.thomsonreuters.com/blog/does-hipaa-apply-to-employers-requests-for-temperature-checks-and-other-covid-19-related-health-information/, acc. 9 June 2021.
[5] Julia, Thompson, “Can employers require a COVID-19 vaccine? Federal agency says yes, and they can offer incentives, too”, USA Today, 31 May 2021, https://finance.yahoo.com/news/employers-require-covid-vaccine-federal-154603394.html, acc. 9 June 2021.