Now that the Vaccine is Approved, Can I Require My Employees to Get It?

Today, the U.S. FDA has granted full approval to Pfizer’s Covid vaccine. This vaccine had previously been subject to an emergency use authorization (EUA). Now that there is an FDA-approved vaccine available, members have been asking whether they are allowed to make the vaccine a condition of returning to (or remaining at) work.

One important concern is that the Americans with Disabilities Act (ADA) says that a business may not discriminate on the basis of a disability. There are also other federal and state laws with similar restrictions. The non-discrimination standards have resulted in questions about how the ADA applies to a business’ response to COVID-19.

The U.S. Equal Employment Opportunity Commission (EEOC) published pandemic guidance in response to the H1N1 flu pandemic, and updated it last year for COVID-19. Their guidance explains that:

• The ADA prohibits an employer from making disability-related inquiries and requiring medical examinations of employees, except under limited circumstances
• The “direct threat” standard permits an employer to make inquiries when an employer has a reasonable belief, based on objective evidence, that an employee’s medical condition will pose a direct threat.
• During a pandemic, employers should rely on the latest CDC and state or local public health assessments.
• Until CDC rescinds its guidance, the COVID-19 pandemic meets the direct threat standard

The federal equal employment opportunity laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodations provisions of laws like the ADA.

Under the reasonable accommodations provisions, an employer must make reasonable accommodations to help someone with a disability be able to meet the terms of employment. Other protected conditions that coudl generate a need for a reasonable accommodation may include pregnancy (protected under the Pregnancy Discrimination Act) or religious objection to the vaccine (protected under Title VIII of the Civil Rights Act). EEOC has published a discussion of reasonable accommodations for COVID-19. Many of ASA’s members are part of the critical infrastructure, and the EEOC guidance clarifies that the ADA provisions apply to critical infrastructure workers as well.

If you plan to require employees to prove their vaccination status as a condition of entering thew workplace, then remember that documentation or other confirmation of COVID-19 vaccination is confidential employee medical information. The ADA requires this sort of information to remain confidential. Like all medical information, this information must be kept confidential and stored separately from the employee’s personnel files under the ADA.

Resources

• EEOC Issues Updated COVID-19 Technical Assistance
• What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws – Vaccinations
• Pandemic Preparedness in the Workplace and the Americans with Disabilities Act