The FDA issued an emergency use authorization for two COVID-19 vaccines. Now, the question of whether you’ll require staff to get the vaccine becomes very real.
If you do, something you need to contemplate: Would the vaccination be a medical examination under the ADA?
New guidance from the EEOC may help you answer these questions.
Here are some of the questions the EEOC answered in its recent update:
- If an employer provides COVID-19 vaccines to employees is it a “medical examination” for under the ADA?
No, because it isn’t a procedure/test done to uncover information about a worker’s physical or mental impairment or health. “If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer isn’t seeking information about an individual’s impairments or current health status and, therefore, it’s not a medical examination,” states the EEOC.
However, pre-screening vaccination questions may cross the line when it comes to the ADA’s provision on disability-related inquiries. Pre-screening questions may elicit information about a disability. Employers that do administer the COVID-19 vaccine must make sure the questions are “job-related and consistent with business necessity.”
- Can firms safely ask workers to show proof of vaccination?
Yes, because it’s not a disability-related question and won’t likely uncover disability info. However, if you require proof, remind employees not to include any health information on it to avoid any ADA implications.
- If an employee refuses the vaccine, what should the employer do if it can’t provide a reasonable accommodation?
If employees refuse the vaccine due to a disability or religious belief/practice, employers can exclude them from the worksite. But that doesn’t mean they can terminate them. They will need to determine if any other rights under the EEO, federal, state or local laws apply.