Yesterday, the Centers for Disease Control and Prevention (CDC) announced new guidelines for individuals who are fully-vaccinated for COVID-19. Under the new CDC guidelines, fully-vaccinated people can:
- Participate in outdoor activities and recreation without a mask, except in certain crowded settings and venues
- Resume domestic travel and refrain from testing before or after travel or self-quarantine after travel
- Refrain from testing following a known exposure, if asymptomatic, with some exceptions for specific settings
- Refrain from quarantine following a known exposure if asymptomatic
As COVID-19 vaccination continues to increase, contractors are increasingly wondering whether and how to ask employees about their vaccinated status. Further, what, if anything, does an employee being “fully vaccinated” mean with respect to COVID-19 mitigation measures (such as masking and social distancing) at jobsites.
FAQ#1—Can I require that an employee provide proof of vaccinated status?
Yes, the EEOC’s December 2020 guidance states that asking an employee to show proof of vaccination is not a disability-related inquiry: “Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.”
However, follow-up questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.”
Therefore, a contractor may request that employees provide Human Resources with documentation (such as a vaccine card) verifying the date(s) on which the employee received the COVID-19 vaccine. Nevertheless, the contractor should instruct employees not to provide any other medical information as part of that documentation, in order to avoid implicating the ADA.
FAQ#2—Is an employee’s vaccinated status “medical information” protected by the ADA?
Under the ADA, “medical information” on employees or applicants is confidential with the following exceptions: (1) supervisors and managers may be told about necessary restrictions on work duties and about necessary accommodations; (2) first aid and safety personnel may be told if the disability might require emergency treatment; (3) government officials may access the information when investigating compliance with the ADA; (4) employers may give information to state workers’ compensation offices, state second injury funds, or workers’ compensation insurance carriers in accordance with state workers’ compensation laws; and (5) employers may use the information for insurance purposes.
The EEOC has not definitely answered the question of whether an employee’s “vaccine status” is considered “medical information” protected from disclosure by the ADA. However, the EEOC’s December 2020 guidance seems to suggest that vaccinated status is not “medical information” as defined by the ADA: “If an employer requires employees to provide proof that they have received a COVID-19 vaccination…the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.”
Nevertheless, until the EEOC definitely answers the question, employers would be well-served to keep an employee’s vaccination-related information in a separate medical file, rather than the employee’s personnel file, and avoid disclosing the information without the employee’s consent. Instead, employers should encourage employees to self-disclose their vaccinated status to avoid any confidentiality issues.
Any contractors worried about HIPAA can be assured that the federal law does not generally apply to information provided by an employee directly to an employer or any business that is not acting as a health care plan or provider.
FAQ#3—Do I have to pay employees for time spent receiving the COVID-19 vaccine?
The answer depends on whether you have mandated that employees receive the vaccine as a condition of employment. If receiving the vaccine is a condition of employment, then time spent getting vaccinated is likely “compensable time” under the Fair Labor Standards Act and state law. If, however, vaccination is only “encouraged,” then time spent being vaccinated is likely not compensable.
FAQ#4—Should vaccinated employees be required to continue face coverings, social distancing, and other COVID-19 mitigation protocols?
Yes, notwithstanding the recent CDC guidance, OSHA’s Jan. 29, 2021 guidance specifically stated that employers should not distinguish between workers who are vaccinated and those who are not with respect to the continued use of protective measures:
“Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person. The CDC explains that experts need to understand more about the protection that COVID-19 vaccines provide before deciding to change recommendations on steps everyone should take to slow the spread of the virus that causes COVID-19.”
Because the OSHA standard relies specifically on guidance from the CDC, it is possible that OSHA will revise this standard as new information becomes available. At this time, however, employers should continue to follow federal and state OSHA standards.
FAQ#5—What if fully-vaccinated employees or employees who previously had COVID-19 refuse to follow workplace guidelines on masking and social distancing?
Employees who refuse to comply with these safety measures should be subject to discipline and discharge on the same basis as any other employee who violates a workplace safety rule. Of course, if an employee is objecting to a safety measure on the basis of a disability (such as severe asthma), then the employer has an obligation to consider whether the employee’s request can be reasonably accommodated without undue hardship to the employer.
FCA International will continue monitoring these issues and provide you updates as they develop.