PeopleScout Compliance Alert: Vaccinations

As U.S. employers navigate pandemic-related changes to the workforce, leaders face new challenges, including the questions of requiring COVID-19 vaccinations and tracking employee vaccination status.

According to Littler, employers are taking a cautious approach, with concerns about worker privacy. According to U.S. Equal Employment Opportunity Commission (EEOC) guidance, employers are able to mandate vaccines in most cases, but they must provide accommodations for employees who cannot receive the vaccine because of certain medical conditions or sincerely held religious beliefs. However, few employers are mandating the vaccine.

When it comes to tracking employee vaccination status, employers are taking a mixed approach, with 41% of respondents to the Littler survey saying they will ask workers to voluntarily disclose their vaccination status, 32% saying they won’t ask and 27% saying they aren’t sure.

Employers who are asking should take care in their approach. Tracking employee vaccination status can help employers determine whether workers need to wear masks or if they can increase capacity in offices, but employers should be cautious in asking follow up questions about why a person has not gotten the vaccine. According to SHRM, questions about why an employee is not vaccinated could be subject to Americans with Disabilities Act (ADA).

If employers do ask vaccination status, they have a few options for tracking. Some employers are relying on the honor system, some require an employee to sign an attestation saying they have been vaccinated and others have formal tracking systems.

There is also a patchwork of local laws, and employers should consult an attorney to determine if any apply in their jurisdiction. For example, Santa Clara County in California requires employers to verify vaccination stats with repeated follow up for those who are unvaccinated. Others, in Oregon, require at least an attestation. Additionally, laws are pending in some states that would prevent private employers from verifying employee vaccination status.