COVID-19 Vaccinations: Practical Considerations for Employers

By: Talesha Saint-Marc, Shiloh Theberge and Hilary Holmes Rheaume

What You Should Know

In December, the U.S. Food and Drug Administration (“FDA”) granted Emergency Use Authorization for the COVID-19 vaccine. In response, a number of questions have arisen for employers, such as:

• Can an employer impose a COVID-19 vaccine mandate in the workplace?
• Can an employer ask employees if they received the COVID-19 vaccine before reporting to work?
• What if an employee refuses to be vaccinated?

Recently, the New Hampshire Department of Justice issued guidance encouraging employers not to mandate the COVID-19 vaccine due to the potential legal implications. In the event you choose to mandate the COVID-19 vaccine, then we recommend following the guidance issued by the Equal Employment Opportunity Commission (“EEOC”), which addresses a number of the legal issues that you might encounter. Here are some key takeaways from the EEOC guidance:

• Employers may impose a COVID-19 vaccine mandate, as long as an employer’s vaccination policy has certain exceptions, and as long as the mandate is job-related and consistent with business necessity.
• Employers must make an exception for employees who cannot be vaccinated because of a disability or a sincerely held religious belief, practice, or observance.
• If an employee cannot receive the COVID-19 vaccine because of a disability or sincerely held religious belief, practice, or observance, and there is no other reasonable accommodation available, then an employer can exclude the employee from the workplace. However, the employer may not automatically terminate the employee’s employment.
• An employer’s administration of the COVID-19 vaccine is not a medical examination under the Americans with Disabilities Act (“ADA”). However, prescreening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability. An employer that administers the vaccine must show that such prescreening questions are job-related and consistent with business necessity.
• An employer can require employees to offer proof that they received the COVID-19 vaccine. According to the EEOC, such proof is not an inquiry related to a person’s disability and is not likely to elicit information about a disability. However, in the guidance, the EEOC warns employers that certain follow-up questions could implicate the ADA, such as inquiring into the reason an employee did not receive the COVID-19 vaccine. As a result, an employer should warn employees not to provide any medical information as part of the “proof” that an employee received the COVID-19 vaccine in order to avoid implicating the ADA.
• The ADA requires employers to keep any employee medical information obtained in the course of the vaccination program confidential.

Bottom Line

In order to avoid the ADA implications associated with the prescreening questions, employers who impose a vaccine mandate should consider offering the vaccine through a pharmacy or third-party healthcare provider. Further, employers should train managers and supervisors on the issues surrounding the vaccine mandate, including reasonable accommodations and the importance of maintaining confidentiality, to ensure compliance with state and federal laws.

Learn more about our Labor & Employment Practice Group or contact us with questions.