COVID-19 VaccineWith three coronavirus vaccines approved for use in the United States, an end to the pandemic appears in sight. But returning to normal comes with plenty of unknowns. For employers looking to reduce (or eliminate) virtual working, several pertinent questions are now surfacing.

Can I ask employees if they have been vaccinated?

The law generally prohibits employers from probing into an employee’s medical history. It is acceptable for a supervisor to ask if an employee is feeling OK or can complete work for the day. However, it is another story when an employer starts asking questions to determine if an employee is pregnant, diabetic, or suffering from some illness. The Americans with Disabilities Act (ADA) prohibits employers from forcing an employee to disclose disabilities or serious medical conditions.

Thankfully, the Equal Employment Opportunity Commission (EEOC) has removed any uncertainty about how the ADA applies in this context. According to recent guidance from the EEOC, employers are permitted to ask employees if they have been vaccinated and for documentation of the vaccine. Employers should, however, avoid health inquiries that probe into other areas not related to the vaccine, as this could run afoul of other employment laws relating to discrimination and disability.

Can I offer incentives for my employees to be vaccinated?

According to research by the Society for Human Resource Management (SHRM), 60 percent of U.S. workers said they will probably or definitely get the vaccine once it becomes available. However, 28 percent said they are willing to lose their jobs if their employer requires the COVID-19 vaccine. This level of resistance, likely higher in conservative states, will lead most employers to inform and encourage the vaccine rather than issue a mandate. Requiring employees to get a vaccine can feel like an overreach that may negatively impact morale.

But even a plan to encourage employee vaccination has legal pitfalls. If an employer offers incentives for employees to get vaccinated –– like time off or additional pay –– accommodations may be needed for those employees who are not eligible for the incentives due to a disability or religious belief. Federal discrimination laws apply to job benefits, and not just hiring or firing decisions.

Regardless of whether an employer opts for a mandatory or voluntary vaccination program, the plan should be implemented in a written policy that clearly communicates the strategy and expectations. The written policy should also let employees know what other COVID-19 restrictions (if any) will remain in place.

What if an employee refuses to return to work?

Generally, employees are not entitled to leave or to telework to avoid illness. But as always, there are exceptions. Employers should consider whether the employee is entitled to an accommodation. Under the Americans with Disabilities Act, employers are obligated to accommodate employees who have a disability that may prevent them from returning to work or being exposed to COVID-19. An employee requesting an accommodation to avoid exposing a family member to COVID-19, however, is not entitled to an accommodation under the ADA. Employers may consider such requests, but are not required to do so.

If an employee requests an accommodation due to his disability, or if the employer has reason to believe an employee has special needs, the employer needs to enter into a dialogue with the employee to ascertain if there is a reasonable accommodation that can be provided. If there is a reasonable accommodation that addresses those needs, the employer needs to provide it. Otherwise, it is not illegal for an employer to mandate in-person work.

Business owners needing assistance in these matters may me at kyle.dudek@henlaw.com or by phone at 239-344-1237.