Private Duty

Are employees required to divulge vaccination status?

Q: Can I require my employees to tell me if they are vaccinated and, if so, to provide proof?

A: The EEOC’s COVID-19 guidance provides that asking for proof of an employee’s vaccinated status is not a disability-related inquiry and is permitted under the ADA. However, the EEOC cautions that asking an employee about the reasons for declining vaccination could require the employee to reveal information about a disability. Thus, the employer would need to demonstrate that such questions were “job-related and consistent with business necessity.” The EEOC recommends that employers warn employees not to provide any medical information as part of the proof of vaccination.

Before requiring employees to reveal their vaccination status, employers should also be mindful of state and local regulations. Several states have proposed legislation banning so-called “vaccine passports” that would bar employers from asking employees about employees’ vaccination status. It is uncertain whether these laws will garner enough support to pass. However, as this is a quickly evolving area of the law, employers would be wise to seek out legal counsel before enacting such policies.

Chad E. Wallace is a shareholder in Baker Donelson’s Johnson City, Tennessee, office, and Rachel VanNortwick Barlotta is a shareholder in the firm’s Birmingham, Alabama, office. They can be reached at cwallace@bakerdonelson.com and rbarlotta@bakerdonelson.com, respectively.