Proof of COVID vaccination is not considered a disability-related question.
Employers are allowed to request COVID vaccinations and ban workers from the workplace if they choose not to do so, under US Equal Employment Opportunity Commission (EEOC) guidelines.
The American Disabilities Act (ADA) restricts an employer’s ability to request medical examinations. However, the EEOC said the vaccine is not a medical exam because it does not gather information about a person’s impairments or current health.
As part of a vaccine request, employers must demonstrate that an unvaccinated worker “poses a direct threat as there is a significant risk of materially affecting the health or safety of an individual or other person that cannot be eliminated or reduced through reasonable precautions”. Four factors can be used to determine a direct threat: duration of risk, type and severity of potential harm, likelihood of potential harm occurring, and potential harm being imminent.
If an employer determines that an employee who cannot be vaccinated because of a disability is a direct threat, the employer can prevent the employee from entering the workplace if the direct threat cannot be reduced to an acceptable level or eliminated.
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This does not mean that the worker may be automatically laid off. For example, the employee may be allowed to perform the position remotely.
“Employers need to determine if other rights apply under EEO laws or other federal, state and local authorities,” the EEOC said. “… This is the same step employers take when they physically exclude employees from a construction site due to a recent COVID-19 diagnosis or symptoms. Some workers may be eligible to telework or, if not, be eligible for vacation under the Family First Coronavirus Response Act under the FMLA [Family and Medical Leave Act]or according to the employer’s guidelines. “
The same goes for religious beliefs. If an employer is unable to provide suitable housing that will reduce or eliminate the risk to an employee who cannot be vaccinated because of religious practices or beliefs, the employer may ban the employee from the workplace. In this scenario, an employee may not be automatically dismissed either. It is also important to note that if an employee requests religious accommodation and the employer has objective reasons to question the validity of the beliefs, the employer may ask for supportive information.
The guidance notes that questions prior to vaccination screening may include information about a disability. Therefore, when an employer gives the vaccine, they must demonstrate that such questions are “job-related and consistent with business need”. To meet this standard, an employer would need to have a “reasonable belief, based on objective evidence, that an employee who does not answer the questions and therefore does not receive a vaccination is a direct threat to the health or safety of himself or herself or himself.” other. “
Proof of COVID vaccination is not considered a disability-related question.
“Simply requesting proof of receipt of a COVID-19 vaccination is unlikely to provide information about a disability and is therefore not a disability-related examination,” the guidelines say. “Subsequent questions from the employer, e.g. However, issues such as why a person has not been vaccinated may generate information about a disability and are subject to the relevant ADA standard that it is ‘job-related and consistent with business need’. If an employer requires workers to provide evidence that they received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide medical information as part of the evidence in order to avoid the Imply ADA. “
There are two scenarios in which disability-related questions can be asked without meeting the “job-related and consistent with business need” standard. First, if the vaccination is voluntary, and second, if the employee receives the mandatory vaccination through a third party who is not contractually linked to the employer.
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