Q1: What Does It Mean to Be “Fully Vaccinated”?
A1: According to the CDC, an individual is considered “fully vaccinated” fourteen (14) days after receiving the second dose in a two-dose series, such as the Pfizer or Moderna vaccines, or fourteen (14) days after a single-dose vaccine, such as the Johnson & Johnson vaccine.
Q2: Are Companies Permitted to Ask Employees if They Have Been Vaccinated?
A2: Yes. Companies may legally ask employees if they are fully vaccinated to further assist in protecting the health and safety of their employees and the workplace. However, questions should be phrased to elicit a “yes” or “no” response as to whether an individual is vaccinated. Inquiries about “why” an individual is not vaccinated should generally be avoided as that inquiry requires that certain legal safeguards be followed.
Q3: Must Information About Employee Vaccination Status Be Kept Confidential?
A3: Yes. The Americans with Disabilities Act (“ADA”) requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination.
Q4: May Companies Require Employees to be Vaccinated For COVID-19?
A4: Yes. An employer may require employees physically entering the workplace to be vaccinated for COVID-19. However, Title VII of the Civil Rights Act of 1964 and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, are unable to get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the employer. If an employee requests an exemption from a mandatory vaccination policy, the employer should begin the interactive process to determine if the facts and circumstances warrant a reasonable accommodation, and if so, what that accommodation should be. Employers may request information corroborating an employees’ need for an exemption and may discipline employees who provide false or misleading information as part of a request for accommodation.
Q5: How is a Mandatory Vaccination Policy Enforced?
A5: Like other workplace policies, employees who refuse to comply with a mandatory vaccination policy, including those who refuse to receive the vaccine as required without appropriate notice and approval (or exemption) from the employer, can be disciplined, up to and including termination of employment. However, given the current challenges in the labor market, employers should carefully consider their staffing and operational needs prior to implementing a mandatory vaccination policy.
Q6: May Companies Request Proof of Vaccination Status from Employees?
A6: Yes. Companies may request information about employees’ vaccination status, including copies of their vaccination cards. If a company requires employees to be vaccinated for COVID-19, it may require employees to provide proof of vaccination and employees who fail or refuse to provide such proof as required may be disciplined for violating the policy, up to and including termination of employment.
Q7: Should Companies Have a Written Vaccination Policy?
A7: Yes. Employers should have a written vaccination policy even if they are not requiring employee vaccinations. A written vaccination policy is an important resource to communicate information to employees about the vaccine, including your organization’s stance on employee vaccinations, and can provide a useful opportunity to remind employees about their continuing obligations to adhere to COVID-19 health and safety precautions in the workplace.
Q8: Can Companies Require Different Workplace Protocols for Vaccinated and Unvaccinated Employees?
A8: Yes. Unvaccinated employees may be required to comply with different or additional health and safety protocols, including but not limited to daily health screenings, continuous mask wearing, enhanced PPE, and/or periodic diagnostic testing.
Q9: May We to Offer an Incentive to Employees for Getting Vaccinated?
A9: Yes. An employer may offer an incentive to employees to voluntarily provide documentation or other confirmation of vaccination.