The DOL Offers Guidance on the ADA’s Interaction with COVID-19 Vaccines

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The U.S. Department of Labor, through its Office of Disability Employment Policy (ODEP)-funded Job Accommodations Network (JAN), has recently added a number of resources for employers on COVID-19 and reasonable accommodations under the Americans with Disabilities Act to its COVID-19 webpage. These include frequently asked questions on COVID-19 Vaccination and the ADA. We summarize these FAQs as follows:

  • Employers may mandate the COVID-19 vaccine.
  • If employers (or their agents) administer the vaccine directly, they must ask the CDC-mandated screening questions – which are disability-related inquiries. Thus, under the ADA, the employer would have to demonstrate that such questions are job-related and consistent with business necessity.
  • If the employee receives the vaccine from some other provider in the community, the employer may require the employee to confirm that they received the vaccine or show proof of vaccination, and doing so would not be considered a medical inquiry. The answer, however, would be considered medical information that must be treated confidentially.
  • Employers with vaccine mandates need to engage in the interactive process to consider reasonable accommodations for those who cannot be vaccinated because of a disability (or, although not addressed by JAN, religion).
  • Citing to the EEOC, JAN states that employees who cannot be vaccinated because of a disability (or, again, religious need) and therefore cannot work safely in the workplace may be excluded from the workplace. JAN cautions that the employee should not necessarily be terminated, if other accommodations such as remote work apply, or if the employee is entitled to other protections under law. (For example, we note that some states are passing or considering employment discrimination protections for the unvaccinated).
  • Of particular interest, if an employee is teleworking because of a disability, an employer may ask whether getting a vaccine will allow them to return to the workplace.
  • Employers should not assume that they can end telework once at-risk employees are vaccinated – that would be a case-by-case determination based on the employee’s individual medical situation.
    • If the disability-related limitation does not require telework, then the employer can stop the telework.
    • If other accommodations are available to enable the employee to return to the workplace, those can be provided in lieu of telework.
    • If the employer temporarily suspended essential functions of the employee’s job in order to enable telework, such change would not be deemed permanent or that telework would always be a feasible accommodation.
  • Employers can require employees to notify them if they become vaccinated (and consequently, no longer need telework as an accommodation).
  • It is “questionable” whether employers could require an employee with a teleworking accommodation to get a vaccine in order to return to work when the vaccine is not otherwise being mandated. Employers should explore other reasonable accommodations to enable the employee to return to the workplace, and if no such accommodations are available, consider continuing telework as long as the employee is able to perform all of their essential job functions and it is not an undue hardship.