Can Employers Request Proof of COVID-19 Vaccination from Employees?
Now that the COVID-19 vaccine is becoming available to certain segments of the American public, many employers are wondering if they can request proof of vaccination from their employees. To answer this question, employers must look to the Americans with Disabilities Act (ADA). The ADA prohibits employers from making disability-related inquiries of their employees. In particular, the employer cannot ask “whether [an] employee is an individual with a disability or as to the nature or severity of the disability” unless the employer’s disability-related inquiry is “job-related and consistent with business necessity.”
The Equal Employment Opportunity Commission (EEOC) has said that requesting proof of vaccination in and of itself is not prohibited by the ADA. According to the EEOC, simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. While requesting proof of vaccination is permissible, employers should be aware that subsequent questions, such as asking why an employee did not receive a vaccination, may be considered a disability-related inquiry because such questions may elicit medical information from the employee.
Therefore, if an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer should end the inquiry with that one question and may want to warn employees not to provide any medical information as part of the proof in order to avoid implicating the ADA.
Employers should consult with experienced human resources professionals and/or labor and employment counsel with any questions regarding pandemic-related policies or practices. For MEA members, the Hotline and a Member Legal Services attorney are available to provide this assistance.
Get the latest Covid-19 compliance updates at our next weekly Growth & Recovery webinar on Tuesdays at 11 AM ET.
Amy G. McAndrew, Esquire
Director of Legal and Compliance Services
MidAtlantic Employers’ Association
*This Alert is provided for general informational purposes only and does not constitute legal advice.