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Employment Law Notebook

NJ DOH Encouraging Employers to Sponsor Workplace Vaccine Clinics: Employers Should Consider ADA Issues Before Doing So

The New Jersey Department of Health has released a new toolkit for employers aimed at encouraging employees to get the COVID-19 vaccine.  One of the components of the toolkit includes an employer agreeing to provide a location in its workplace for a popup vaccination clinic where vaccine providers can administer shots. Before doing so, employers should be mindful of various issues under the Americans with Disabilities Act (“ADA”) that could be triggered by offering vaccines at the worksite, according to Guidance issued by the Equal Employment Opportunity Commission last December.

While the EEOC has said that encouraging employees to get the vaccine by itself does not trigger any ADA obligations, individuals getting the vaccines are asked pre-screening medical questions before getting one.  Such questions are likely to elicit information about an employee’s disability, which is a medical inquiry. If the pre-screening questions are being asked at a vaccine site not associated with the employer, there are no employment implications to that occurring. If, however, an employer offers employees the opportunity to get the vaccine at its workplace, employees who use the clinic must be given the choice whether or not to answer the medical screening questions, according to the EEOC.  If they refuse to do so, and the vaccine provider declines to administer the vaccine, employers are barred under the ADA from taking any adverse action against an employee for refusing to answer these medical questions.

If, however, the employer is mandating vaccines for employees (subject to the accommodation requirements under the ADA), they would be better off not sponsoring a vaccine clinic at the worksite.  That’s because in that scenario an employee who goes to get a vaccine at the employer’s onsite clinic would be required to answer those prescreening medical questions since the employer is requiring employees to get the vaccine.  Under the ADA, employers cannot require employees to provide such medical information to them without proving that doing so is “job-related and consistent with business necessity.”   To meet this 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.”

Given the large amount of time that non-vaccinated employees have been able to work in-person by wearing masks and social distancing, it will likely be difficult for most employers to satisfy that standard. However, that requirement does not exist if employers allow employees to get a vaccine from a health care provider or pharmacy that is not located on the employer’s premises and that does not have a contract with the Employer, according to the EEOCs’ Guidance.  Accordingly, employers that wish to mandate the vaccine would be better off not trying to do so at their own worksite.

Other aspects of the State’s vaccine toolkit do not implicate these issues. This include educational information employers can provide to employees about the vaccine and about the state vaccination call center and examples of other vaccine promotional activities employers are using.