FOR businesses + Employees

Q: Can we require an employee to show proof that they have received the vaccine outside of work?

According to the Equal Employment Opportunity Commission (EEOC), yes. Simply requiring proof of vaccination by itself does not violate either the Americans with Disabilities Act (ADA) or the Genetic Information Nondiscrimination Act (GINA).

However, employers should be aware that the ADA limits their ability to make “disability-related inquiries,” and GINA generally prohibits employers from requesting employees’ genetic information. While neither of these laws prevents employers from asking for proof of vaccination, employers are wise to explicitly tell employees not to provide related medical or genetic information as part of the proof.

For example, employees should be advised not to provide their full medical history or extraneous information about their medical visit when providing proof of vaccination.

Q: Should we have a vaccine policy?

A vaccine policy is optional, but many employers may wish to create one. At this point, we recommend working with an attorney to draft a vaccine policy if you want to require employees to vaccinate.

Q: What are best practices if we plan to provide the vaccine at work?

If you do not have onsite medical resources that you can use, the best practice would be to contract with a professional medical service provider. It is recommended that you contact your health insurance carrier for assistance.

From a practical perspective, we recommend making COVID-19 vaccines available during times that allow your employees to receive the vaccine during their workday, so that they will not have to come to work in their off-hours to receive the vaccine. If you are requiring employees to receive the vaccine, the best practice would be to pay employees for the time it takes to get vaccinated (including associated wait times). It is also wise to publicize the event and ensure that managers allow time for employees to receive the vaccine during their workday. Encourage leadership to participate in vaccination too, which may help inspire confidence and participation from other employees.

To maintain employees’ privacy and comply with the ADA, we recommend that you provide a private space for each employee to receive the vaccination individually. Employees may share private medical information with vaccine providers or have medical questions; allowing privacy will help ensure confidentiality of that information.

Additionally, if you (or a contractor working on your behalf) provide vaccines, pre-vaccination screening questions are “disability-related inquiries” under the ADA and must be “job-related and consistent with business necessity.” To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not get vaccinated will pose a direct threat to their own health or safety or the health and safety of others.

If you require proof of vaccination, the best practice is to tell employees in writing not to provide genetic information as part of their vaccination proof. A sample GINA warning is available under the Confidentiality section above.

Finally, the ADA requires employers to keep all employee medical information confidential—including medical information obtained as part of the vaccination program.

Can I tell clients whether my employees are vaccinated?

While employers are allowed to ask employees about their vaccination status, employers should treat this information as confidential unless they have a legitimate business reason to disclose it. For example, employers whose employees are in-home caregivers for elderly clients can most likely confirm to their clients that their employees are vaccinated. The best practice would be to have employees voluntarily consent to the disclosure to avoid potential privacy issues under state law (if applicable). Employers may be prohibited from disclosing additional information, however, such as the fact that an employee didn't get vaccinated because of a disability.