As the COVID-19 Delta variant spreads, many employers are becoming increasingly concerned about the health and safety of their workforce and have again begun looking toward additional safety measures to combat COVID-19 in the workplace. Such measures include but are not limited to mandatory vaccinations (showing proof of their vaccination status) for employees. When determining whether to require COVID-19 vaccines for employees (or require proof of vaccination status), employers should consider the following:
1. Anti-Discrimination Statutes
The Equal Employment Opportunity Commission (“EEOC”) has provided updated guidance regarding COVID-19 vaccinations in the workplace. The updated guidance reiterates the EEOC’s original position taken in December 2020 that employers can mandate that all employees who physically enter the workplace be vaccinated. Such mandate, however, is subject to reasonable accommodation for disability (Americans with Disabilities Act) including disability resulting from pregnancy-related conditions, or sincerely held religious beliefs (Title VII of the Civil Rights Act). Additionally, the EEOC specifically noted that “because some individuals or demographic groups may face greater barriers to receiving COVID-19 vaccination”, employers with mandatory vaccination policies should be conscious of whether the policy has a disparate impact on certain employees based on a protected characteristic.
The employer may require employees in the workplace to be vaccinated subject to reasonable accommodation for disability, pregnancy-related conditions, and sincerely held religious beliefs. Employers with mandatory vaccination policies should notify employees that requests for reasonable accommodation will be considered on an individualized basis. Requests for accommodation from the vaccine mandate should be handled the same as any other request for accommodation. Employers must engage in the interactive process with the employee to determine what is the best course of action going forward.
The guidance further notes that even a fully vaccinated employee may request a reasonable accommodation based on a disability-related concern that he or she is at risk from COVID-19 exposure. Employers should address such a request as it would any other accommodation request and engage in the interactive process with the employee pursuant to the ADA mandates. Vaccinations in the Workplace.
2. Confidentiality/Privacy Considerations
Employers must also be cognizant of confidentiality concerns when seeking proof of vaccinations. Employee documentation or confirmation of COVID-19 vaccination is considered confidential medical information under the ADA. While the ADA does not prohibit employers from requiring proof of vaccination, such information must be kept confidential and stored in a medical file separate from the employee’s personnel file. Additionally, employers must limit the use of the supporting documentation and control access to such documentation. As such employers should only ask for the bare minimum of supporting documentation such as a vaccination card or survey response. In addition, employers should communicate to the employees that such documentation will be strictly confidential.
Employers may have legitimate business reasons to ask employees about their vaccination status, but employers should be careful not to dig too deep into any inquiry and should avoid asking questions that may violate the ADA’s prohibition of medical inquiries that are not job-related or consistent with business necessity. However, asking for proof of a COVID-19 vaccination does not in and of itself violate the ADA in that it is unlikely to prompt the employee to provide disability-related information.
3. Vaccine Passport Prohibition in Iowa
At the end of the last legislative session, Governor Kim Reynolds signed into law a prohibition of vaccine passports in Iowa. The new law does not allow businesses or governmental entities to require customers, patrons, clients, patients, or other persons invited onto the premises to show proof of a COVID-19 vaccine. The law does not, however, list employees in the category of individuals who are protected from having to show proof of a COVID-19 vaccine. As a result, Iowa employers can legally require employees to show proof of a COVID-19 vaccine as a condition of employment. Whether the passport prohibition applies to independent contractors is yet unknown.
4. Vaccine Incentives
Employers that do not mandate vaccinations may instead decide to incentivize employees to receive vaccinations. Pursuant to the EEOC guidance, employers may encourage employees and their family members to be vaccinated. In doing so, employers may provide employees and their family members with information to educate them about COVID-19 vaccines; raise awareness about the benefits of vaccination; address common questions and concerns; under certain circumstances off incentives to employees who receive the vaccines.
Employers can offer incentives for employees to voluntarily provide confirmation of vaccination, so long as no genetic information is acquired while administering the vaccines or obtaining confirmation. For vaccinations offered by the employer or its agent, the incentive offered cannot be “so substantial as to be coercive” so as to prevent employees from feeling pressured to disclose protected medical information.
While vaccine incentives are permissible for employees as described above, employers should be careful when offering vaccine incentives for employee’s family members when the vaccine is offered by the employer or employer’s agent. If providing an incentive to an employee’s family member would require the family member to answer pre-vaccination medical questions, it could result in a violation of GINA which prohibits employers from providing incentives in exchange for genetic information.
5. OSHA Considerations
OSHA imposes recordkeeping requirements on covered employers for certain work-related injuries and illnesses. Vaccine-related illnesses or injuries may be covered under OSHA’S recordkeeping requirements if the vaccine is deemed to be work-related.
In late May 2021, OSHA adjusted its guidance on recording COVID-19 vaccine-related illnesses or injuries in that OSHA did not want to have any appearance of discouraging workers from getting the COVID-19 vaccine or disincentivizing employers’ efforts to have their employees vaccinated. As a result, OSHA is not requiring employers to record any side effects that workers experience from the COVID-19 vaccination, at least through May 2022.
6. Update Employer Policies
Although this is a constantly changing environment when it comes to COVID-19 guidance and policies, employers should do their best to keep employees updated on the employer’s current policies and practices when it comes to COVID-19 vaccines and other safety measures. Additionally, employers should remain agile in implementing such policies and complying with current guidance and requirements.