Mark Wiletsky
Question: Can we ask employees if they have received the COVID-19 vaccine?
Answer: The short answer is: Yes. According to the Equal Employment Opportunity Commission (EEOC), you can ask employees if they have received a COVID-19 vaccine. You can also require individuals to provide proof they were vaccinated.
The EEOC explains such requests aren’t disability-related inquiries, and as a result, they don’t implicate an employee’s rights under the Americans with Disabilities Act (ADA). You must be cautious, however, about asking follow-up questions. For example, it might be tempting to ask an individual why he hasn’t been vaccinated. But doing so implicates the ADA because the question could elicit information about a disability (e.g., he might explain he has a medical impairment that creates additional risks with respect to the vaccine). Therefore, at a minimum, such requests must be job-related and consistent with business necessity. Similarly, when asking for proof of vaccination, you should instruct individuals not to provide any extraneous medical information because that too might implicate the ADA.
As organizations evaluate options for employees’ return to the office, it’s natural to want to know your employees are vaccinated. Although state law may vary, the EEOC’s guidance provides some reassurance on this question. But you should consider whether you need to ask follow-up questions and be cautious when seeking proof from employees that they have been vaccinated.
