Question

We provide catering food and services. Some of our clients are requesting that our catering staff be COVID 19 vaccinated to work at their event. To accommodate the client, can we, as an employer, ask our employees if they have been vaccinated and can we ask them for proof of vaccination? Is it legal for us as the employer to prohibit an employee who is not vaccinated from working catering events when the client requests all catering employees be vaccinated? 

Answer

The current guidance from the federal Equal Employment Opportunity Commission (EEOC) suggests that an employer may generally require employees to obtain the COVID-19 vaccine, so long as a reasonable accommodation is provided for those with a disability (as required by the federal Americans with Disabilities Act/ADA) and/or a religious belief (as required by Title VII of the Civil Rights Act of 1964) that may interfere with any such requirement. Specifically, the EEOC addresses the issue “What You Should Know About Covid 19 and ADA Rehabilitation Act and Other EEO Laws” as follows:

“K.1. Under the ADA, Title VII, and other federal employment nondiscrimination laws, may an employer require all employees physically entering the workplace to be vaccinated for COVID-19? (5/28/21)

The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below. These principles apply if an employee gets the vaccine in the community or from the employer.

In some circumstances, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business.The analysis for undue hardship depends on whether the accommodation is for a disability (including pregnancy-related conditions that constitute a disability) (see K.6) or for religion (see K.12).

As with any employment policy, employers that have a vaccine requirement may need to respond to allegations that the requirement has a disparate impact on—or disproportionately excludes—employees based on their race, color, religion, sex, or national origin under Title VII (or age under the Age Discrimination in Employment Act (40+)). Employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.

It would also be unlawful to apply a vaccination requirement to employees in a way that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason.”

With respect to a form for medical documentation for disability accommodation requests, we make a Medical Request for Accommodation form available on our website that you can access through your portal. If timely returned, the employer and employee should then engage in an interactive dialogue to determine whether a disability exists and if so, whether it can be reasonably accommodated without undue hardship to the employer. For more information on the duty to reasonably accommodate both as to disability and sincerely held religious belief, please see Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA and EEOC Religious Discrimination respectively. Inquiries about COVID-19 vaccination status should be made individually and not in a group setting. The employer should determine the appropriate representative/agent to make such inquiries of employees if it does so. Individual managers or supervisors can be tasked with securing this information, or perhaps HR personnel may do so. Regardless, the employer has an obligation to ensure that those asking the questions and receiving the answers do so in a manner that maintains confidentiality as required by law. If the employer will require vaccination against COVID-19 as a condition of employment, it can require that employees provide evidence of the same. Employers ordinarily have several options in this regard:

• Employees provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and employer maintains a copy.
• Employees provide proof of vaccination and the employer maintains a record of the employees who presented proof, but not the vaccine record itself.
• Employees self-attest to vaccination status and employer maintains a record of who self-attests. Note that this option leaves open the possibility that employees may be dishonest, even in an attestation otherwise.

Whatever information and/or documentation the employer secures in response to an inquiry about vaccination status is subject to confidential record-keeping requirements under the ADA. This means that employers ordinarily cannot disclose such information to third parties, such as clients. For more information, please see The ADA: A Primer for Small Business and particularly the section titled, "Confidentiality."

Please note that this response does not constitute legal advice. As well, information about industry specific and local statutory or similar requirements, as well as document drafting and review, fall outside the scope of this service. As such, you may wish to consult local counsel who can assist with advice as to any applicable food-service or similar industry-specific obligations and drafting accommodation forms and related documents as the employer may need or desire. He or she can also assist in developing and establishing a vaccine policy that comports with the employer’s objectives and applicable law on this issue. Any such policy should then be clearly communicated to all employees in advance of its implementation, and uniformly and consistently enforced by managers, supervisors and HR personnel who have been properly trained as to its terms, conditions and application in the organization.