Vaccination needle on a blue background.
Unsplash/Markus Spiske

There's a lot for restaurants to consider.

Federal Government Says Employers Can Mandate COVID Vaccinations

Asking for proof of a COVID vaccination doesn’t count as a disability-related question.

Employers are allowed to require COVID vaccinations and ban employees from the workplace if they choose to opt out, according to guidance from the U.S. Equal Employment Opportunity Commission (EEOC).

The American Disabilities Act (ADA) limits an employer’s ability to require medical examinations, but the EEOC said the vaccine isn’t a medical examination because it doesn’t seek information about an individual’s impairments or current health status.

Under a vaccine requirement, employers must show that an unvaccinated worker would “pose a direct threat due to a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Four factors can be used to determine a direct threat: duration of the risk, nature and severity of the potential harm, likelihood that potential harm will occur, and imminence of the potential harm.

If an employer determines that an employee who can’t get vaccinated because of disabilities poses a direct threat, the employer can prevent the employee from entering the workplace if the direct threat can’t be reduced or eliminated to an acceptable level.

A LOOK BACK: Should a restaurant mandate COVID-19 vaccines?

That doesn’t mean the worker may automatically be fired. For example, the worker may be entitled to performing the position remotely.

“Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities,” the EEOC said. “… This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, may be eligible to take leave under the Families First Coronavirus Response Act, under the FMLA [Family and Medical Leave Act], or under the employer’s policies.”

The same is true for religious beliefs. If an employer is unable to provide appropriate accommodations that reduce or eliminate the risk for a worker who can’t get vaccinated because of religious practice or belief, the employer is allowed to ban the employee from the workplace. A worker may not be automatically fired in this scenario either. It’s also important to note that if an employee requests a religious accommodation and the employer has objective reasons for questioning the validity of the beliefs, the employer is allowed to ask for supporting information.

The guidance does note that pre-screening vaccination questions may elicit information about a disability. Therefore, if an employer administers the vaccine, it must show that such questions are “job-related and consistent with business necessity.” To meet that standard, an employer would need to have a “reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.”

Asking for proof of a COVID vaccination doesn’t count as a disability-related question.

“Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry,” the guidelines said. “However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be ‘job-related and consistent with business necessity.’ If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.”

There are two scenarios where disability-related questions can be asked without having to meet the “job-related and consistent with business necessity” standard. First, if the vaccination is voluntary, and second, if the employee receives the mandatory vaccination through a third party that’s not contracted with the employer.

With the CDC naming foodservice workers as one of the next groups in line for the vaccine, these guidelines will likely be referenced quite frequently by operators in a couple of months. Workers at food and drink establishments were put in Phase 1c, along with other categories like construction, media, legal, and energy, and those between 65 and 74 years old and people between 16 and 64 with high-risk conditions. Phase 1a includes healthcare personnel and long-term care facility residents and Phase 1b includes people who are older than 75 and frontline essential workers such as first responders, teachers, grocery store employees, U.S. Postal Service workers and others. 

More than 50 million people are in Phase 1a and 1b. According to the CDC's timeline, Phase 1c may start sometime in February.