While “simply asking for proof of vaccination for COVID-19 is legally permitted,” other instances can be trucks, Mark Phillips, an attorney with Los Angeles-based Reed Smith, tells Society for Human Resource Management.
One potential dilemma is if an employer were to ask an unvaccinated worker why they did not get vaccinated. This could reveal information about a disability, which is protected by the Americans with Disabilities Act and other employment laws that mandate such inquiries be “job-related and consistent with business necessity.”
To avoid running afoul of employment laws, employers generally should steer clear of asking staff to provide medical information beyond proof of vaccination, Phillips says. But for situations where employees need to travel for business, employers can ask or require their workers to provide proof of vaccination, says Alexa Miller, an attorney at Florham Park, N.J.-based Faegre Drinker.
Knowing a worker’s vaccination status is relevant, for example, for a business to prepare for any potential quarantine situations for employees who travel. For workers who have underlying health conditions that prevent them from getting vaccinated, employers who require COVID-19 vaccinations will need to find ways to reasonably accommodate those workers. “Create clear-cut, transparent policies to set expectations,” says Stephanie Rawitt, an attorney with Philadelphia-based Clark Hill.
Barbara Harris, senior legal editor, Labor & Employment, at Thomson Reuters Practical Law, writes in Human Resources Executive that HR managers need to be mindful of what is best for employees and in the employers’ best interest should a business introduce vaccine passports.
How would an employer deal with a worker who is exempt from getting a vaccine, but needs that worker to be physically present in the workplace to do their job? “Can organizations bar that person from the workplace and withhold a salary if they cannot or choose not to get vaccinated under a COVID passport program?” Harris says. “This is something that most companies are still working through, as the government hasn’t provided any real answers in terms of policy just yet.”
Harris adds that “HR must be aware of the legal minefields when approaching these scenarios and even more cautious about terminating the employment of staff for COVID and vaccine-related reasons, lest they find themselves in incredibly hot water.”
For employees who need to be at the worksite, HR may need to implement extra safety measures around social distancing, modified work schedules and extra-protective equipment to accommodate those workers, Harris notes.
As far as any potential federal mandates regarding vaccine passports, “the government is not now, nor will we be supporting a system that requires Americans to carry a credential,” White House Press Secretary Jen Paski said last month. “There will be no federal vaccinations database and no federal mandate requiring everyone to obtain a single vaccination credential,” she noted.
A recent poll of executives finds a near split down the middle with 51% leaning toward requiring their employees to get vaccinated to work on site, while 49% are leaning toward no, finds West Monroe, a technology consulting firm. That first-quarter executive poll surveyed 150 C-level executives in early January from firms with at least $250 million in annual revenue.