The availability of authorized COVID-19 vaccines offers hope that America is on the path toward pandemic recovery. Employers are doing their part to boost this recovery by implementing strategies for safely returning employees to the workplace and are seeking guidance on the impact of COVID-19 vaccines on this process. JAN is receiving a range of questions on this topic, including whether mandatory COVID-19 vaccination may be required and how vaccination might impact the responsibility to provide reasonable accommodations for employees with disabilities or medical conditions under the Americans with Disabilities Act (ADA). COVID-19 vaccine-related workplace issues will continue to evolve. Contact JAN to discuss a specific situation if you need additional information.
May applicants be asked if they can meet a mandatory COVID-19 vaccination requirement? (Added 12/1/21)
At the pre-offer stage, the ADA does not prohibit an employer from asking if an applicant is fully vaccinated. Asking only whether an applicant is vaccinated is not a disability-related inquiry under the ADA (see What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws -- Question K.9.). If an applicant is not vaccinated, an employer can ask if they can get vaccinated.
May applicants be asked why they cannot meet a mandatory COVID-19 vaccination requirement? (Added 12/1/21)
Under the ADA, employers are not allowed to ask applicants disability-related medical questions, with limited exceptions. Therefore, the answer depends on whether asking why an applicant is not vaccinated is considered a disability-related medical question. This issue has not been addressed in the Equal Employment Opportunity Commission’s (EEOC) current pandemic guidance, so it may be safer for an employer not to ask. Instead, employers might want to make sure applicants know that they can request accommodations if they are unable to meet the vaccination requirement because of a disability and then address the vaccination matter post-offer.
May applicants be asked to provide documentation if they will not be able to meet a mandatory COVID-19 vaccination requirement? (Added 12/1/21)
The ADA restricts requests for medical documentation related to meeting a requirement of a job until a job offer has been made. After an employer makes a conditional job offer it could then request medical documentation if an exception to a vaccination requirement is requested as an accommodation due to a medical reason. Employers may refer to the template provided by the Safer Federal Workforce Taskforce to develop a form for requesting medical documentation from post-offer candidates and employees who request an exception based on a medical condition.
Under the ADA, can an employer require that employees get vaccinated against COVID-19? (Updated 5/6/21)
The ADA does not prohibit employers from requiring COVID-19 vaccinations. However, if an employer requires vaccinations as a condition of employment, various ADA rules may apply.
An employer who requires employees to get vaccinations administered directly by the employer or its agent will have to ask the CDC-recommended, pre-vaccination screening questions, and these questions include disability-related inquiries. Because the ADA limits when an employer may ask disability-related inquiries, the employer would have to show that the questions are job-related and consistent with business necessity if challenged.
By contrast, if an employer instead asks employees if they have received a vaccination in the community, or requires them to provide proof of vaccination, this is not a disability-related inquiry and is allowed under the ADA. However, the ADA requires an employer to treat the answer as confidential medical information. Also, if an employee cannot get a vaccination because of a disability, the employer must consider making accommodations.
For more information about the ADA and COVID-19 vaccinations, see section K in What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
Also, employers may want to seek legal advice as there may be other laws that apply to mandating employee vaccinations.
Is asking whether an employee has received a COVID-19 vaccination a disability-related inquiry under the ADA?
No. Asking if an employee has received a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. However, questions about why an employee has chosen not to be vaccinated could elicit information about a disability and would be subject to the ADA standard that disability-related inquiries of employees must be job-related and consistent with business necessity.
For more information about disability-related inquiries and COVID-19 vaccination, see What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
May an employer ask employees whether they have received a COVID-19 vaccination?
Yes. Asking if an employee has received a COVID-19 vaccination is not likely to elicit information about a disability and therefore is not a disability-related inquiry under the ADA.
For more information, including whether an employer can request proof of vaccination, see question K.3. at What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
How should an employer respond when an employee with a disability cannot receive the COVID-19 vaccine due to a medical reason?
An employer should recognize this as an accommodation request under the ADA and engage in an interactive process with the employee. The employer may gather information about the employee’s medical condition to determine if the employee has a disability and whether there is a reasonable accommodation that will eliminate or reduce any risk associated with working while unvaccinated that does not pose an undue hardship to the employer. Reasonable accommodation solutions can be explored using information about an employee’s essential job duties, the work environment, and nature of the workforce. JAN can assist by providing guidance on accommodation solutions.
For a detailed discussion about how to respond when an employee with a disability requests to be exempt from a mandatory vaccination requirement, see question K.5. at What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
Can an employee who cannot comply with an employer’s mandatory COVID-19 vaccination policy because of a disability be excluded from the workplace if they cannot be accommodated to work safely while unvaccinated?
According to the Equal Employment Opportunity Commission (EEOC), if an employee cannot comply with an employer’s mandatory COVID-19 vaccination policy because of a disability and they cannot be reasonably accommodated to safely work, then the employer may exclude the unvaccinated employee from the workplace. This does not necessarily mean, however, that the employee may be terminated. The employer should determine if the employee is entitled to other accommodations, such as remote work, and if protections under other federal, state, or local laws apply.
See question K.6. at What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
If an employer is allowing an employee with a disability to telework as an accommodation during the pandemic, can the employer ask the employee whether getting a COVID-19 vaccine will enable the employee to return to work?
Yes, an employer can ask questions to determine whether an accommodation continues to be needed.
Can an employer end telework accommodations once at-risk employees with disabilities receive a COVID-19 vaccine?
An employer should not assume that just because an employee received a vaccine that the employee is no longer at risk and can return to work. This should be approached case-by-case based on each employee’s specific medical situation. Vaccination is a step toward reducing the risks associated with exposure to COVID-19, but is not a guarantee that it is safe for everyone to return to work. Some employees with medical conditions, even after being vaccinated, might still need more protection from exposure to the virus than others. Decisions about an employee’s ability to safely return to work should be based on guidance from their health care provider and current information from public health authorities like the Centers for Disease Control and Prevention (CDC) and the Food and Drug Administration (FDA).
Some employees will be able to return to the workplace after being vaccinated, but reasonable accommodations might still be needed to limit the risk of exposure to COVID-19. If an employee requests to continue teleworking as a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation. If there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. Or, if there is a disability-related limitation but the employer can effectively address the need with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework. Additionally, if the employer had temporarily excused performance of one or more essential functions to enable employees to telework for the purpose of protecting their safety from COVID-19, it does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. JAN offers guidance on accommodation solutions. For more information, see JAN’s COVID-19 resources and question K.11. at What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
If an employer doesn’t ask whether employees have received a COVID-19 vaccine, does an employee with a disability have to tell their employer that they have received the vaccine if receiving the vaccine removes their need for a previous accommodation (e.g., if they could return to the workplace because they have been vaccinated)?
In general, an employee with a disability should let their employer know when an accommodation is no longer necessary.
If an employer is allowing an employee with a disability to telework as an accommodation during the pandemic, can the employer require the employee to get vaccinated against COVID-19 so the employee can return to work if the employer otherwise does not require employees to be vaccinated?
This would be questionable under the ADA. An employer cannot require an employee with a disability to receive a vaccination to avoid its obligation to otherwise provide that employee with a reasonable accommodation. The employer might ask whether alternative effective accommodations could enable the employee to return to the workplace. If so, the employer may then choose alternative effective accommodations to return the employee to the workplace. If there are not effective alternative accommodations and telework continues to be a reasonable accommodation where the employee is performing the essential functions of the job, then the employer might need to consider continuing the telework accommodation, unless it poses an undue hardship.
JAN continues to monitor trending issues and provide appropriate guidance and resources related to the pandemic situation. Detailed COVID-19, ADA, and accommodation information can be found on the AskJAN.org COVID-19 page. You can also contact JAN to discuss a specific situation.