Federal agencies “face a variety of legal issues concerning employee vaccinations, including privacy, office safety, and discrimination issues” the Justice Department has said in guidance specific to its own components but which addresses concerns across all agencies.
One issue that is arising more widely is whether agencies, as employers, can compel employees to be vaccinated against the Coronavirus as part of a strategy to have more employees working on-site. “At present, the department is not requiring employees to be vaccinated, and will provide additional guidance about requiring vaccinations at a future date,” it says.
However, it notes that EEOC’s interpretation of the Rehabilitation Act and other pertinent law “allows employers, when vaccines are generally available and under certain circumstances, to require employees, even outside of certain essential and/or healthcare related occupations, to get vaccinated against COVID-19 before returning to the workplace.”
It adds: “However, the component should provide alternatives, such as telework, for employees who cannot receive the vaccine due to personal or health reasons. The employer should also be cautious when mandating vaccination, due to potential tort claims arising out of any employees who suffer health complications from the vaccination. While a mandatory vaccination policy is lawful, there are many risks that accompany such mandatory programs. As an alternative for the time being, components should strongly consider policies that encourage vaccination and continue to consider alternative work options for unvaccinated employees.”
Regarding privacy concerns, it says that:
* Agency components “may create lists of employees to track vaccinations, e.g., who would like to receive a vaccine, who has received the vaccine, who has been offered a vaccine, and who was offered a vaccination but declined.” Access to that information should be tightly restricted, however, and “it would be best not to include” any information not necessary for tracking, such as a health condition an employee raises for declining a vaccination for health reasons.
* “Inquiring about an employee’s vaccine status for business purposes does not likely implicate discriminatory issues.” However, “supervisors should avoid asking further questions that elaborate on why the employee chose not receive the vaccine, because such questions could elicit information about health or disability. If documentation of vaccination is needed, supervisors should also warn employees that they should not include other medical information.”
* Supervisors should not ask employees whether they have had COVID-19 in the past “absent a business need” for that information, an exception that would not apply “as a general matter.”