As more employees return to the office, employers—associations included—are grappling with how to best provide a safe work environment. Two major considerations are whether to adopt a mandatory COVID-19 vaccination policy and whether to require employees to disclose their vaccination status. There are no easy answers, and associations must determine what makes the most sense for them based on their or- ganization’s circumstances and workforce.
Recently, the Equal Employment Op- portunity Commission issued guidance making it clear that employers can man- date COVID-19 vaccinations for employees, with two exceptions: as a reasonable accommodation to employees unable to be vaccinated due to a disability under the Americans with Disabilities Act, and in the case of a sincerely held religious belief or practice under Title VII of the Civil Rights Act.
Therefore, before enacting a vaccine mandate, an association must be properly prepared not only to enforce the policy but also to handle employee requests for an exception to the policy. The association must also be prepared to discipline or terminate employees who simply refuse to comply. Alternatively, some associations may choose to adjust their remote work policies or encourage vaccination by offering incentives to vaccinate or providing more education about COVID-19 and vaccinations.
If you enact a vaccination mandate, be sure to engage in an interactive process as soon as you learn that an employee needs an accommodation. The process should be a good-faith effort to learn about the employee’s circumstances and the accommodation needed. An employer is allowed to evaluate the legitimacy of the medical issue or the sincerity of the religious belief or practice. However, it is generally recommended to presume these requests to be legitimate or sincere unless there is an objective basis to question them.
An employee may be required to provide a description of the circumstance and supporting documentation. Employers want to ensure that they’re asking only for information that would be considered reasonably necessary for the circumstance’s evaluation. It’s also important to note that a sincerely held religious belief can be theistic, moral, and/or ethical—as long as it is sincerely held, it should be considered valid.
Be sure to protect and keep confidential any information you collect through the process, particularly health and medical information that you are required to keep separate from the employee’s personnel file to protect its confidentiality. An accommodation request may be denied if it will cause an undue hardship or pose a direct threat, but it would be prudent to consult with local counsel before issuing a denial.
Disclosure of Status
Regardless of whether a vaccination mandate policy has been implemented, an employer may ask employees to disclose their vaccination status. This information can help with reentry plans and determining what health and safety measures to institute. However, the scope of the inquiry should be narrow to avoid eliciting an employee’s medical or disability-related information. Proof of vaccination status—a copy of the employee’s vaccine card or other documentation—should be sufficient. Again, vaccination status information should be kept confidential and shared only on a need-to-know basis.
Once the association determines its policies for returning to work, establish clear and consistent communication with employees. As the pandemic continues to evolve, keep employees informed about the association’s policies and procedures and everything you are doing to protect health and safety.
See NAR’s COVID-19: Workplace Re-Entry Checklist and What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws for the latest guidelines.
Note that some states and local governments have imposed vaccination mandates. Know your state and local laws and work with counsel to ensure compliance. In addition, on Sept. 9, President Joe Biden announced that employers with 100 or more employees will be required to ensure that their workers are either fully vaccinated or required to produce a negative COVID-19 test each week. The mandate will be implemented through an emergency temporary standard issued by the Department of Labor and its Occupational Safety and Health Administration, but questions remain about when the mandate will become effective and how it will apply to employers and their workforce. NAR is closely monitoring the situation and will provide any updates as they become available.