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ANALYSIS: ‘Got Vax?’ How Queries to Workers Raise ADA Bias Risks

Feb. 25, 2021, 9:08 AM

Covid-19 vaccinations are ramping up, but so far only 5.9% of the U.S. population is fully vaccinated. The slow rollout is leaving many frustrated and wondering how—and why—those who received a vaccine were able to get it so quickly.

For those who have received the vaccine, such questions can feel like intrusive inquiries into their private health conditions. And if those questions happen at work, they are more than just uncomfortable: They can lead to illegal harassment and expensive lawsuits.

Here’s a quick reminder about who can ask what at work.

Can an employer ask if a worker has been vaccinated?

Yes. The Equal Employment Opportunity Commission has released guidance clarifying that employers are free to ask if workers have been vaccinated, and can even ask for proof of vaccination.

Can an employer ask how an employee qualified to receive a vaccine?

No. The Americans with Disabilities Act prohibits employers from asking most disability-related questions. And, because the vaccine distribution plan in every state prioritizes people who have certain health conditions, asking a worker how or why they got the vaccine can be considered a disability-related question.

What about when co-workers ask questions?

For co-workers, the answer is a little more complicated. While the ADA doesn’t prohibit nonmanagerial employees from asking disability-related questions, it does prohibit harassment based on disability. Repeated questions, gossip, and accusations can all constitute forms of harassment.

Disability-related questions that come from a manager—whether to a direct report or to any other employee—are considered employer inquiries and are prohibited under the ADA.

How can employers prevent disability harassment during the vaccine rollout?

Clear policies, communication, and training can help organizations prevent harassment. As the vaccine rollout continues, employers should review and update policies, remind workers that many people don’t want to discuss their health issues at work, and train managers to avoid asking disability-related questions.

Bloomberg Law subscribers can find related content on our Coronavirus (Covid-19) Toolkit resource.

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