‘Can We Ask if Employees Have Been Vaccinated?'

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The above question may be the most frequent one we have encountered from employers in the past several weeks. As more COVID-19 vaccines become available, employers are increasingly curious about the number of their employees who have received partial or full vaccination. This question could aid in return-to-the-office planning or in determining continuing COVID-19 prevention strategies.

The short answer to this question is yes. Employers can ask employees about their vaccination status. Late last year, the Equal Employment Opportunity Commission issued updated guidance confirming that vaccinations are not medical examinations as defined under the Americans with Disabilities Act. This means that employers can ask employees whether they have been vaccinated without having to demonstrate business necessity under the ADA.

The EEOC did say that questions associated with vaccination status may involve disclosure of medical information prohibited under the ADA. For example, employers should not follow up on the vaccination question with ones asking employees why they have not received a vaccine. The answer to this question could involve disclosure of a medical condition that prevents an employee from receiving immunizations.

Employers that decide to ask employees about vaccination status may face some resistance. Some employees may view the question as intrusive. Others may suspect that an affirmative answer to the question will prompt the employer to “force” vaccinated workers to end remote-working arrangements. Regardless, employers have the flexibility to ask this question and use the information obtained to guide COVID-19 policies going forward.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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