KBS Reference Desk: COVID-19 Vaccination Status Questions and EEO Laws

Q:        Our school district wants all of our employees to be vaccinated for COVID-19. May we ask our employees whether they have been vaccinated?

 A:        Yes. School districts, however, must be very careful when questioning employees about their vaccination status not to request or provide an opportunity for explanation, as such might elicit confidential personal information and implicate multiple equal employment opportunity laws and obligations.

 The Texas Department of State Health Services formally notified state vaccine providers on March 3, 2021 that Texas teachers and childcare workers were eligible by virtue of their jobs to receive COVID-19 immunizations effective immediately. Health officials similarly announced on March 23, 2021 that all Texan adults who wish to receive COVID-19 vaccinations will be eligible beginning on Monday, March 29, 2021. With the increased availability of COVID-19 vaccinations, many school districts throughout Texas are hopeful that all of their educators and staff will become fully vaccinated for the well-being and safety of their workforce, students, and communities. Still, school districts should be cautious if they ask whether their employees have been vaccinated, as responses to such questions may implicate equal employment opportunity (“EEO”) laws, such as the Americans with Disabilities Act (“ADA”), the Genetic Information Nondiscrimination Act (“GINA”), and Title VII of the Civil Rights Act of 1964 (“Title VII”).

The ADA states: “A covered entity shall not … make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature and severity of the disability, unless such … inquiry is shown to be job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). With very limited exceptions, the GINA similarly prohibits qualified employers from requesting an employee’s genetic information, which is defined to include the employee’s family’s medical history. 42 U.S.C. § 2000ff-1(b).

Merely asking about or requesting proof of COVID-19 vaccination does not amount to a prohibited disability or genetic-related inquiry under the ADA or GINA. To the extent the question elicits protected information, however, the dialogue could be problematic. An employee may, for example, answer “NO” to the inquiry, with the added explanation that their decision not to be vaccinated is due to an underlying medical condition, disability, or their family’s medical history. Similarly, an employee may reveal that they have not been vaccinated as a result of a deeply held religious belief. Such responses could trigger protections under the ADA, the GINA, and Title VII (i.e., requiring the district to engage in the interactive process and provide reasonable accommodations, requiring the district to maintain the employee’s records in a confidential file, etc.). To avoid implicating certain EEO laws, the U.S. Equal Employment Opportunity Commission (“EEOC”) recommends that “the employer may want to warn the employee not to provide any medical information as part of the proof [of COVID-19 vaccination].” This statement should be included on any COVID-19 vaccine-related questionnaire.

Further guidance about COVID-19 vaccinations and EEO laws is available from the Texas Education Agency at https://tea.texas.gov/sites/default/files/covid/k-12_covid-19_vaccine_faq.pdf and the EEOC at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. Please contact your local school attorney if you seek additional information or have specific questions.

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