The EEOC says employers can legally ask workers about their COVID vaccination status—and require proof—without sparking liability under federal employment laws like the ADA or Genetic Information Nondiscrimination Act (GINA). But you need to be careful with any follow-up questions. Only 8% of HR professionals say that their organizations (mostly large global companies) will require employees to show proof of vaccination, according to a new Gartner Research survey. Another 36% of HR leaders plan to have employees self-report their vaccine status, but will not require proof. Be cautious with follow-up questions like, “Did you have side effects?” or “Why haven’t you been vaccinated yet?” Those questions aren’t specifically illegal. But they are more likely to elicit information about an employee’s disability and, thus, may violate the ADA’s limits on medical inquiries of employees. If you ask any such questions, you must be able to show that the need for such information is “job-related and consistent with business necessity.” That can be a high bar, so it may be best to avoid such questions in the first place. Also, if you require workers to show proof of COVID vaccination, the EEOC suggests that you also “warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.”

Source: HR employment Law Vol. 51, No. 5 | May 2021