Covid-19 Testing & Vaccinations in the Workplace

The presence of Covid-19 has added another layer of compliance concerns and obligations for employers. This summary highlights key testing and vaccination issues. Laws and guidance in these areas will continue to evolve. For example, Senate Bill 74 introduced in Indiana could prohibit Indiana employers from requiring workers to get immunizations against Covid-19 or any other disease. Employers are encouraged to continue monitoring legal developments and guidance from the CDC, OSHA, EEOC and other sources.

Covid-19 Testing

Q: Can an employer require that its employees be tested for Covid-19?

A: Yes. Employers may choose to administer diagnostic (not antibody) tests to employees before initially permitting employees to enter the workplace and/or periodically (such as weekly). While the Americans with Disabilities Act (ADA) generally prohibits medical exams of employees, including Covid-19 diagnostic tests, such tests are permissible to determine whether an employee poses a “direct threat” to the workplace.

• • • The test must be job-related and consistent with business necessity. To satisfy this requirement, reliability of the test is key and molecular tests (or PCR tests) are recommended rather than the antigen test (or rapid test). 

• • • If an employer decides to require testing, it should adopt a policy and specific testing and response protocols addressing security and confidentiality of the information gathered, the information to be provided to employees (which must include a patient fact sheet from the CDC) and much more.

• • • Test results are medical records and must be maintained separate from personnel files in confidential medical files for each employee. Additionally, employers should limit disclosure of the name of any employee who may test positive to those that need to know and appropriate procedures should be established in advance.

• • • Employers will likely use a third party to provide such testing and the employer will want to be sure the third party has robust testing and security protocols in place, including satisfaction of any applicable HIPAA requirements (including an employee’s signature on a HIPAA-compliant authorization form, allowing the lab to disclose the test results to the employer).

Covid-19 Vaccinations

Q: Can an employer require that its employees obtain a Covid-19 vaccine?

A: Yes. In guidance issued last month, the U.S. Equal Employment Opportunity Commission (EEOC) made it clear that employers electing to require Covid-19 vaccinations are obligated to provide exemptions or accommodations to employees with religious objections, pregnant workers and employees with disabilities that may prevent them from obtaining a vaccination (general fear regarding vaccinations is insufficient to warrant an exemption or accommodation). Find the EEOC’s guidance for Covid-19 vaccinations here.

• • • Contrary to testing, a vaccination is not a medical exam under the ADA. However, pre-screening vaccination questions may expose the employer to claims of impermissible disability-related inquiries. All such questions must be job-related and consistent with business necessity; in short, keep the inquiries limited to those necessary for administration of the Covid-19 vaccine. To avoid exposure to impermissible disability-related questions, the employer can: (1) offer the vaccine on a voluntary basis; or (2) require vaccination by a third party without a contract with the employer (such as the employee’s health care provider). The latter option is the more conservative approach to a vaccine mandate and will require employees to provide satisfactory proof of vaccination.

• • • Similar to testing, employers will likely use a third party to provide vaccinations and the employer will want to be sure the third party has robust pre-screening and education/information distribution protocols in place. Making sure employees receive all required or desired information regarding the vaccine is critical. Employers should review the pre-screening questions and require indemnification from the third party for any claims arising from the vaccinations.

• • • Any medical information the employer may receive as a result of its vaccination policy must be maintained as a confidential medical record. Proof of vaccination from a pharmacy or an employee’s own health care provider is not a medical record, but employers should warn employees (in writing) not to provide any medical information as part of the proof to avoid implicating obligations under the ADA.

The information contained in this publication should not be construed as legal advice or opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are encouraged to consult your own legal counsel on any legal questions you may have concerning your particular situation.