June 15, 2021
Authored by: Patrick DePoy and Christy Phanthavong
As employers make plans to modify pandemic-related work-from-home arrangements and require employees to come into the workplace, many have wrestled with “the vaccination status question.” Should employers ask employees whether they are fully vaccinated against COVID-19, or even require employees to provide proof of vaccination before returning to work (subject to certain accommodation obligations)?
The U.S. Equal Employment Opportunity Commission’s (“EEOC”) COVID-19 Guidance has made clear that, under the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”), employers are generally permitted to inquire about vaccination status, because the question is not a disability-related inquiry or a medical examination. In light of this guidance, many employers have opted to ask the vaccination status question, and are doing so in various voluntary or mandatory ways, e.g., through surveys, through required completion of forms or attestations, or even by requesting proof of vaccination (i.e., a copy or photograph of the employee’s CDC-issued vaccination card received at the time of vaccination).
But once the vaccination status question is asked and answered, what can and should an employer do with the vaccination status information? Can it be the basis for employment-related decisions? Are there any restrictions on providing employees’ vaccination status to other employees, such as managers, or even to third parties, such as clients or vendors? Where should an employer keep the information?
Recently, the EEOC updated its Guidance to partially address these questions:
K.4. Is information about an employee’s COVID-19 vaccination confidential medical information under the ADA? (5/28/21)