In our December 10 post we surmised that, though there was no law or regulation directly addressing the issue, based on existing flu vaccination policies and a proposed NYS Assembly bill, employers could still require their employees to get the COVID-19 vaccine.
Last week this was confirmed, when the U.S. Equal Employment Opportunity Commission issued guidance enabling employers nationwide to require employees to get vaccinated against COVID-19, and bar them from the workplace if they refuse.
The EEOC further clarified that this does not contradict the Americans with Disabilities Act, which restricts employers’ access to medical information about employees. An employer may require proof from an employee of being vaccinated without violating the ADA.
That said, employers should use caution when discussing the matter with employees, particularly with regards to prescreening questions. To avoid an ADA violation, all prescreening questions must be “job related and consistent with business necessity.”
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Andrew Kimler heads Vishnick McGovern Milizio LLP’s Employment Law, Commercial Litigation, and Alternative Dispute Resolution Practices and is a key member of the LGBTQ Representation Practice. He can be reached at firstname.lastname@example.org and 516.437.4385 x122.