A SHOT IN THE DARK – CAN YOU ASK EMPLOYEES ABOUT THEIR VACCINATION STATUS?

Now that many Americans have received, or soon will receive, the COVID-19 vaccination, can you ask your employees whether or not they’ve been vaccinated without running afoul of employment regulations?

The Equal Employment Opportunity Commission says that you can ask employees about their COVID-19 vaccination status. That’s because this question alone isn’t likely to cross over into territory about the employee’s possible medical conditions, which is off-limits.  If you only need to know whether or not an employee has been vaccinated, tell the employee you don’t need any additional information other than a simple “yes” or “no” answer.

If the answer is “yes” and you need proof, you can request documentation from the provider of the immunization showing the date(s) the vaccine was administered. Again, in this situation, let the employee know that they don’t need to provide any additional medical information. Any vaccination documentation you receive should be treated as a confidential medical record.

If the answer is “no”, and you need information about why the employee hasn’t been vaccinated, you need to tread carefully so as not to prompt information about the employee’s medical status.  You can only ask for this information if it is “job-related and consistent with business necessity.” This only applies if you have a reasonable belief that an unvaccinated employee would pose a direct threat to the health or safety of themselves or others.

You may face a situation where you need more information and need to be cautious about how these questions are posed. These circumstances raise potential legal issues; if you find yourself in this type of situation, call us for guidance.