The COVID-19 vaccine is becoming more available throughout the country, and safety restrictions are becoming relaxed for fully vaccinated people. Some businesses have opted to keep these safety restrictions in place, while others are allowing employees who are fully vaccinated — a full two weeks have passed since their second shot — to cease wearing masks to work. This means that employers need to ask their employees about their vaccination status, but they will need to proceed with caution.
The way that an employer asks about their employees’ vaccination status is important, because if it is too much of a medical inquiry, it can cause problems with the Americans with Disabilities Act (ADA). However, if you only ask the employee to produce proof of their vaccinations, that is not a violation of the ADA, since it should not make the employee give away any information related to disabilities they may have. If an employee tells you they do not intend to get the vaccine, you cannot inquire as to why because that might be due to a disability, which would then violate the ADA; you simply have to leave it at that. You also cannot legally fire someone for telling you that they will not be getting the vaccine because there could be a medical reason they are not getting it.
If you decide to require proof of vaccination from all of your employees, you will need to ensure that there is limited access to this information to keep the records private. While the information is sensitive, it is not technically considered a medical inquiry. However, it is still advised that employers treat vaccination records like they treat medical information and ensure the data is protected. An employer should inform employees that their vaccination records will remain confidential.
Asking Applicants for COVID-19 Vaccine Records
An employer can require prospective employees to be vaccinated before their first day of work, but they must be careful to leave room to accommodate those who cannot get vaccinated due to a disability. If you intend to implement such a policy, include it in your job description notes so that there are no surprises when they are told they need to provide this information. However, you should not require someone to bring their vaccination proof to the job interview; simply include it with the other information they need to provide upon hiring.
It is also perfectly legal for you to ask an applicant if they have COVID-19 currently or if they have any symptoms of the virus. You cannot ask if they had COVID-19 in the past, though, because the ADA might prohibit that.
It can be a little confusing to keep track of the dos and don’ts in this situation, so to sum up:
- You CAN ask for proof of vaccination.
- You CAN require new hires to be fully vaccinated before their first day.
- You CANNOT ask an employee or applicant why they do not have the COVID-19 vaccine.
- You CANNOT ask if someone had COVID-19 in the past.
- You CAN ask if they currently have COVID-19 or symptoms related to it.