Q: Can we ask employees if they've been vaccinated?
A: Employers can ask workers whether they’ve been vaccinated, but they’ll need to be cautious about asking follow-up questions, according to Crowell & Morning Counsel Christine Hawes.
The U.S. Equal Employment Opportunity Commission has said that employers can ask workers about their vaccination status without triggering federal employment laws such as the Americans with Disabilities Act or the Genetic Information Nondiscrimination Act, Hawes said.
EEOC specified in guidance that employers can ask workers for proof of vaccination without making a disability-related inquiry, which could potentially violate the ADA, as the question won’t likely force an employee to divulge information about a disability. Similarly, the agency said employers can ask the question without implicating GINA because "it does not involve the use of genetic information to make employment decisions."
Employers need to be careful in asking follow-up questions, Hawes said: Why haven’t you been vaccinated? How did it go? Did you have any side effects? Those questions may trigger the ADA, GINA or both, according to Hawes.
It’s important for employers to understand that those follow-up questions and similar inquiries aren’t outright banned. "There may be legitimate reasons that an employer would need to ask some follow-up questions," Hawes said. Before employers ask such questions, they need to assess why they need the information, how they may use it and how those two factors could create potential discrimination issues.
Employers must be able to show that their need for the information is job related and consistent with business necessity, Hawes said. "This can be kind of a high bar, especially in this context, so I think most employers are trying to avoid these questions."