Employers can't ask why employees decide not to get vaccinated, says Aaron Zandy, partner with FordHarrison LLP.

Vaccinations, return to work highlight employment law update

Employers can require shots but shouldn’t ask why employees don’t get vaccinated.

April 22, 2021

Legal issues surrounding how to handle coronavirus (COVID-19) vaccines and returning safely to work post-pandemic topped the agenda during an employment law update Thursday at the 2021 CUNA HR & Organizational Development Council Virtual Conference.

While employers can require employees to get a COVID-19 vaccination, they can’t ask why employees decide not to get vaccinated, says Aaron Zandy, partner with FordHarrison LLP.

Employers considering setting up employer-sponsored vaccinations need to be aware of related legal hurdles, such as documents becoming medical records under Equal Employment Opportunities Commission (EEOC) rules and questions turning into medical inquires under the Americans with Disabilities Act.

“It’s much safer to require employees to get the vaccine on their own as opposed to you as an employer providing it for them,” Zandy says.

Credit unions aren’t accustomed to having much contact with the Occupational Safety and Health Administration (OSHA), but Zandy says that will change in the wake of COVID-19.

OSHA—which protects workers from health and safety hazards on the job—currently does not have standards in place that address what steps organizations need to take to maintain a safe and healthy workplace, or statutes or regulations that impose penalties for companies that fail to do so.

But OSHA and the Centers for Disease Control and Prevention (CDC) have released guidance on safety measures, such as maintaining social distance and wearing masks. Zandy says organizations that follow that guidance are well-positioned to defend themselves against complaints filed with OSHA that claim the workplace isn’t safe or healthy.

“It’s the organization’s obligation to maintain a safe workplace,” Zandy says. “How do you achieve that? Follow the guidance and ensure employees are being safe and sensitive to others.”

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