By Tom O’Day
As more businesses begin to reintegrate employees into their workplaces, they should be sure to comply with federal laws regarding COVID-19 vaccines.
Yes. The Equal Employment Opportunity Commission (EEOC) says that simply asking whether an employee has been vaccinated— and nothing else— is not a medical inquiry or medical examination under the Americans with Disabilities Act (ADA). Employers with a legitimate business reason for asking that question (e.g., to direct patients to particular employees or healthcare providers) are in an even better position to ask that question. Employers should couple the question with a proactive statement that the employer does not want any information about medical conditions, religious beliefs, or family history as part of the response.
Employers should also consider differences between the ADA and any applicable state disability law with respect to this or any other issue.
Unfortunately, it’s difficult to answer this question definitively. The EEOC withdrew prior guidance regarding what types of incentives employers may offer as part of their wellness programs. Employers had looked to that guidance to provide incentives to encourage vaccination among their employees, and its withdrawal has left a regulatory void. In February, a coalition of business groups sent a letter to the EEOC requesting clear guidance on this issue, but it has not yet come.
Generally acceptable incentives are coming into focus, thanks to employers that have decided to act in the absence of guidance from the EEOC. First, incentives to cover the time and expense associated with getting a COVID vaccine seem to be reasonable and acceptable. For example, some employers cover the cost of any vaccine (to the extent not covered by any government program or insurance plan) and provide paid time off for employees to get vaccinated and for potential side effects.
Second, a de minimis incentive is likely acceptable. De minimis incentives may include a $10 gift card or a company water bottle provided in exchange for getting vaccinated. Incentives such as these have relatively little value and appear to be acceptable. Keep in mind their potential tax consequences as well.
The one thing that is clear is that many employers want to provide these incentives. Keep an eye out for future guidance from the EEOC.
Under federal law, the answer is likely yes, but it depends in part on the type of business. As discussed above, asking about an employee’s vaccination status will not violate the ADA. Thus, separating vaccinated employees from unvaccinated employees for purposes of viral screening tests does not appear, in and of itself, to trigger liability under federal disability law.
The EEOC has advised that any medical test of employees must be “job related and consistent with business necessity.”1 The EEOC also states that the ADA does not interfere with employers’ compliance with the recommendations of the CDC or other public health agencies with respect to testing and screening for COVID-19. In fairly definitive fashion, the EEOC stated: “Testing administered by employers consistent with current CDC guidance will meet the ADA’s ‘business necessity’ standard.” 2
The CDC recognizes that “workplace-based testing for SARS-CoV-2, the virus that causes COVID-19, could identify workers with SARS-CoV-2 infection, and thus help prevent or reduce further transmission.”3 It recommends testing in workplaces with healthcare personnel, defined as “all paid and unpaid persons serving in healthcare settings who have the potential for direct or indirect exposure to patients or infectious materials.”4 The guidance for healthcare personnel also recommends testing for all healthcare personnel in nursing homes and (if testing resources are available) for all healthcare personnel in other settings.
The CDC has also issued the following guidance (last updated in mid-March) for non-healthcare workplace settings:
Workplace settings for which screening testing of workers should be considered include:
(Given the evolving nature of the COVID-19 pandemic, employers would do well to monitor the CDC guidance for future changes.) Because the CDC has identified these workplaces for screening testing, those employers likely may require their employees to take a COVID test on a weekly or other regular basis. Employers will need to continue to consider reasonable accommodations for religious or medical reasons.
Note that as of late January, the Occupational Safety and Health Administration (OSHA) advises employers to treat all employees, vaccinated or not, the same when it comes to risk mitigation strategies.6 For example, employers who continue to require employees and nonemployees to wear masks and physically distance while on their premises should impose those requirements regardless of vaccination status.
The answers presented here focus on compliance with federal law. As always, employers will need to take state and local laws into consideration in addition to federal law.
1 EEOC. 2020. “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” EEOC website, December 16, www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
3 CDC. 2021. “Interim Guidance for SARS-CoV-2 Testing in Non-Healthcare Workplaces.” CDC website, March 17, www.cdc.gov/coronavirus/2019-ncov/community/organizations/testing-non-healthcare-workplaces.html#anchor_1615914276994.
4 CDC. 2021. “Interim Guidance on Testing Healthcare Personnel for SARS-CoV-2.” CDC website, February 16,www.cdc.gov/coronavirus/2019-ncov/hcp/testing-healthcare-personnel.html.
5 CDC. 2021. “Interim Guidance for SARS-CoV-2 Testing in Non-Healthcare Workplaces.”
6 OSHA. 2021. “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” OSHA website, January 29www.osha.gov/coronavirus/safework.
Tom O’Day is a partner with Husch Blackwell LLP (www.huschblackwell.com). He provides measured counsel to hospitals, physician groups, health systems, and individual providers regarding complex employment and medical staff matters. He can be reached at email@example.com.