The EEOC has issued guidance on policies related to vaccinations at the workplace, the latest in a series related to Coronavirus-related considerations under workplace laws that apply to federal agencies as well as many private sector employers.
For example, it says that the administration of any FDA-approved vaccine to an employee by an employer (or a company working under contract for the employer) would not be considered “medical examinations” under the ADA. However, questions to determine whether a person may have a condition arguing against vaccination may implicate the ADA’s provisions on inquiries likely to elicit information about a disability. “If the employer administers the vaccine, it must show that such pre-screening questions it asks employees are job-related and consistent with business necessity,” it says.
If the vaccination is strictly voluntary—and so far that has appeared to be the case in all vaccinations already administered to federal employees, or that are planned to be—the employee’s decision whether to answer questions also must be voluntary, it says. “If an employee chooses not to answer these questions, the employer may decline to administer the vaccine but may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions,” it says.
Screening questions also may implicate similar protections under the Genetic Information Nondisclosure Act, it says, depending on what is to be asked.
The guidance also covers considerations for when an employer may determine a vaccination to be mandatory and how the law would apply in that case; requiring proof of vaccination by an outside provider, and more.