As more businesses begin to reintegrate employees into their pre-pandemic workplaces, many of our clients have questions regarding return-to-work issues. In this edition of Funny You Should Ask, we address three questions many of our clients have asked during the past week. The answers below focus on compliance with federal law. As always, employers will need to take state and local laws into consideration in addition to federal law.
Can I ask my employees if they have been vaccinated?
Yes, under federal law. 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/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.
Employer should also consider differences between the ADA and any applicable state disability law with respect to this or any other issue.
Can I provide incentives for my employees to get vaccinated?
A definitive answer would be nice, wouldn’t it? Unfortunately, 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. The EEOC’s withdrawal of the wellness guidance left a regulatory void. In February, a coalition of business groups sent a letter to the EEOC requesting clear guidance on this issue. 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 like these have relatively little value and appear to be acceptable. Keep in mind potential tax consequences of these types of incentives 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.
Can I require employees who have refused the vaccine to take a COVID test on a weekly or other regular basis?
Under federal law, the answer is likely yes, but it depends in part on the type of business. As identified in Question 1, 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.” 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.”
As recently as March 17, 2021, the Centers for Disease Control and Prevention (CDC) updated its Interim Guidance for SARS-CoV-2 Testing in Non-Healthcare Workplaces. Given the changing nature of COVID-19, employers would do well to monitor future changes the CDC makes to this guidance.
The CDC recognizes that workplace-based testing for COVID-19 could help prevent or reduce further transmission. The CDC identified the following workplace settings where screening testing should be considered:
- 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). The CDC issued separate guidance for healthcare personnel that recommends testing for all healthcare personnel in nursing homes, and recommends testing for all healthcare personnel in other settings if testing resources are available.
- Workplaces at increased risk of introduction of COVID (e.g., workplaces where workers are in close contact with the public, such as restaurants or salons, or workplaces in communities with moderate to substantial transmission)
- Workplaces where there is a higher risk of COVID transmission (e.g., workplaces where physical distancing is difficult and workers might be in close contact, such as manufacturing or food processing plants, or workplaces that provide congregate housing for employees such as fishing vessels, offshore oil platforms, farmworker housing or wildland firefighter camps)
- Workplaces where COVID infection among employees will lead to greater negative impact, such as:
- Workplaces in remote settings where medical evaluation or treatment may be delayed
- Workplaces where continuity of operations is a high priority (e.g., critical infrastructure sectors)
- Workplaces with a high proportion of employees at increased risk for severe illness
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.
In late January, the Occupational Safety and Health Administration (OSHA), however, advises employers to treat all employees, vaccinated or not, the same when it comes to risk mitigation strategies. For example, employers who continue to require employees and non-employees to wear masks and physically distance while on their premises should impose those requirements regardless of vaccination status.