This article was originally published on June 2, 2021. 

The Equal Employment Opportunity Commission (EEOC), the body responsible for enforcing federal laws that prohibit job discrimination and harassments, has issued guidance regarding workplace policies created in response to the COVID-19 Pandemic. Many employers have adapted specific policies to facilitate the safe return of employees to the workplace.  Below you will find a summary of the most recent EEOC guidance regarding the legality of mandatory vaccination or mask wearing policies for employees. 

May My Employer Require Me to Be Vaccinated Before Returning To Work?

Yes.  The EEOC has provided guidance indicating that employers can require their employees to receive the COVID-19 vaccine before returning to work in-person.1  However, employers must still comply with Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA) and the Ohio Civil Rights Act which may exempt employees from employer vaccination mandates if they have a sincerely held religious belief or a disability that would prohibit vaccination.2

Under the ADA, an employee with an ADA disability that prevents him or her from taking the COVID-19 vaccine may be entitled to a reasonable accommodation that exempts him or her from an employer vaccination policy if that accommodation would not cause “undue hardship” on the employer.  In the ADA context, undue hardship is a “significant difficulty or expense.”  If you believe you have a disability that prevents you from getting the COVID-19 vaccine your employer is allowed to request proof of your disability through a doctor’s note or other form of medical documentation.

Similarly, under Title VII, an employee may be exempt from an employer vaccination mandate if that employee holds a sincere religious belief, practice, or observance that prohibits COVID-19 vaccination.  The employer must provide the employee with a reasonable accommodation unless that accommodation would impose “undue hardship” on the employer.  Under Title VII, undue hardship is defined as “more than [a] de minimis cost” to the employer.  This is a lower standard than undue hardship under the ADA.

Possible employer accommodations include continuing remote working arrangements or providing masks, gloves and other personal protective equipment to employees.

The EEOC states that if the employer cannot reasonably accommodate an employee who is unable to be vaccinated the employer may “exclude” the worker from the workplace.  However, this does not mean necessarily mean that your employer may automatically terminate you.  If you believe your employer has terminated you because of your inability to receive the COVID-19 vaccine, give us a call today for a free consultation.

May My Employer Require Me to Wear a Mask at Work?

Yes.  Private employers are given a wide latitude in implementing work-place policies to protect the health and safety of all employees, including mandating mask-wearing in the office.  However, if you have a sincerely held religious belief or medical condition that prevents you from wearing a mask, your employer may be required under Title VII or the ADA to provide you with an accommodation.

May I Be Required to Wear A Mask Even if I am Already Vaccinated?

Yes. Although the CDC has recently issued guidance indicating that in certain situations vaccinated individuals no longer need to wear masks or socially distance, employees still need to follow their employer’s mask guidelines while in the workplace.3

Does Asking Me About My Vaccination Status or Requiring Vaccination Violate Health Privacy Laws?

No.  The EEOC has indicated that asking an employee about their vaccine status does not violate the ADA, because “there are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Simply requesting proof of receipt of a COVID-19.”  However, an employer inquiry as to why you were not vaccinated may elicit information about a disability and would therefore be subject to the ADA standard that such questioning be “job-related and consistent with business necessity.”4

Requiring employees to provide proof that they have received a COVID-19 vaccination does not implicate Title II of GINA because disclosure of an employee’s vaccination status does not involve the use, acquisition, or disclosure of “genetic information” as defined by the statute.

Does Requiring Only Unvaccinated Employees to Wear Masks in the Workplace Violate Health Privacy Laws?

Most likely not.  While the EEOC has not directly addressed whether a workplace policy that only requires unvaccinated employees to wear masks in the workplace would violate laws regarding disclosure of confidential medical information, it would be a stretch to prove that your employer’s policy inadvertently exposes your vaccination status if other vaccinated employees choose to continue to wear masks in the workplace because mask wearing in and of itself does not indicate a person’s vaccination status alone.5  Many vaccinated employees may choose to continue wearing a mask in the workplace even if the employer no longer requires it.

 

Mansell Law, Employment Attorneys in Columbus, Ohio.

(1) Pandemic Preparedness in the Workplace and the Americans With Disabilities Act -Updated in Response to the COVID-19 Pandemic, U.S. EEOC (Mar. 19, 2020); What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, U.S. EEOC (Dec. 16, 2020).

(2) Id.; Jade L. Robinson, Can Private Employers Require Their Employees to Get Vaccinated for Covid-19?, Ohio State Bar Association (Jan. 14. 2021) https://www.ohiobar.org/public-resources/commonly-asked-law-questions-results/labor–employment/private-employers-covid-19-vaccine/

(3)  Interim Public Health Recommendations for Fully Vaccinated People, Centers for Disease Control and Prevention (May 13, 2021) https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html

(4) The EEOC Releases First Guidance on Covid Vaccination for Employer, National Law Review Vol. XI, No. 141 (Dec. 16, 2020) https://www.natlawreview.com/article/eeoc-releases-first-guidance-covid-19-vaccination-employers

(5) Alexis Keenan, Can Employers Legally Require Unvaccinated Workers to Wear Masks? The Answer is likely yes, Yahoo! Finance (May 20, 2021) https://finance.yahoo.com/news/employer-mask-mandates-legal-covid-19-vaccination-121346094.html