Since March 2020, changes in COVID-19 recommendations, risk levels, safety precautions, and executive orders have made it challenging for businesses to keep up with guidelines. On May 13, the Centers for Disease Control and Prevention (CDC) issued an update that could indicate the light at the end of the tunnel for the coronavirus pandemic. Per the CDC’s guidance, individuals who are fully vaccinated against the COVID-19 virus no longer need to wear masks or socially distance from others in most indoor or outdoor environments.
The guidance has already prompted many states, municipalities, and businesses to update their policies regarding COVID-19, masking, social distancing, capacity limits, and more. It has also raised questions about what employers can do regarding vaccine requirements as they prepare for a full return to the workplace.
While many businesses have continued to operate remotely for the duration of the pandemic, the CDC’s guidance has prompted the lifting of some restrictions affecting workplaces, giving employers more freedom to plan return-to-work strategies. As employers seek a return to normal, including offices and workplaces where employees aren’t required to wear masks and can interact as they did pre-pandemic, many are wondering about the legality of requiring employees to get vaccinated.
Historically, employers have been limited in their ability to inquire about any facet of a candidate or employee’s medical history. These restrictions are driven by the Equal Employment Opportunity Commission (EEOC), which monitors and enforces federal laws that relate to employment discrimination. Most restrictions pertaining to employment and medical history relate to the Americans with Disabilities Act (ADA), which protects individuals with disabilities from discrimination. Disqualifying job candidates based on medical factors can risk violating the ADA, which is why most employers avoid bringing medical matters into the employee background checks process.
Despite these restrictions, early guidance from the EEOC and other bodies has indicated that employers are within their rights to both 1) ask candidates if they have been vaccinated against COVID-19; and 2) require that new or existing employees get vaccinated. Some major employers have already taken this step—Delta Airlines is requiring all new employees to be vaccinated, though the airline has not yet implemented the same requirement for existing staff.
To avoid violating the ADA or the EEOC, experts say that employers should keep their vaccine inquiries narrow. Rather than asking for full medical history or running a medical-related background check, employers can simply ask candidates to provide proof of vaccination. This path keeps the inquiry focused on COVID-19 and avoids clashes with Health Insurance Portability and Accountability Act (HIPAA), as it asks the candidate to provide information themselves rather than asking a healthcare provider to disclose records.
Employers should also review state laws that may apply to their situation, especially if they plan to require the COVID-19 vaccine. States have different regulations on providing reasonable accommodations for health or disability-related factors, religious objections, or other reasons that candidates or employees may give for not getting vaccinated.
Requiring the COVID-19 vaccine may be a path for employers to return to the office safely. However, while the EEOC does not forbid vaccine inquiries or requirements, employers should discuss their plans with legal counsel before implementing any requirements. A lawyer will be able to provide guidance on specific state laws and other considerations that may affect the legality of their proposed requirements.
About Michael Klazema The author
Michael Klazema is Chief Marketing Technologist at EY-VODW.com and has over two decades of experience in digital consulting, online product management, and technology innovation. He is the lead author and editor for Dallas-based backgroundchecks.com with a focus on human resource and employment screening developments.