Acara Partners is eager to share another guest blog from attorney Allyson Avila, a partner at Gordon Rees Scully Mansukhani, LLP. As one of the country’s leading attorneys in the Aesthetic Medical Industry, Avila has written the following to advise employers on how to ensure their practices remain safe and healthy while also respecting Employee rights under the ADA as the COVID-19 vaccine gets rolled out.

Because the Federal Drug Administration (FDA) has given Emergency Use Authorization for two COVID-19 vaccines, employers must now have policies in place that outline how to deal with an employee who refuses to comply with obtaining a vaccine. In an attempt to keep their business afloat and workforce safe and healthy, employers now face a new challenge of navigating potential legal pitfalls and avoiding costly employment litigation.

It is mandated under the Federal Occupational Safety and Health Act (OSHA) and many states’ laws that employers are obligated to provide a workplace free from serious recognized hazards. In complying with these requirements, employers have the right to establish legitimate health and safety standards, policies and requirements so long as they are job-related and consistent with business necessity.

According to the Equal Employment Opportunity Commission (EEOC) guidelines, employers may require an employee to receive a vaccination either from the employer or from a contracted third party. It is important to note that the EEOC clarified that requiring a vaccination in and of itself is not a medical examination under the ADA. The vaccine is not “a procedure or test usually given by a healthcare professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.” (See EEOC guidelines, Section K(1).)

There are some exemptions, such as a true religion exemption or a disability under the ADA that can prevent an employee from getting the vaccine. The EEOC also confirmed that employers asking employees for proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. If/when asking follow-up questions as to why an employee did not receive the vaccine, employers should be mindful that such questions may elicit information about a disability, effectively implicating the ADA’s prohibition against disability-related inquiries.

To avoid implicating the ADA and to assure the employee that their right to privacy is entirely respected, an employer should assure its employees that it is not seeking any private medical information as part of the proof of a COVID-19 vaccination. As a best practice, employers must keep all medical records confidential for individuals who receive a vaccine — regardless of whether the employee received the vaccine at work or provides proof of having been vaccinated elsewhere.

Additionally, the EEOC warned that employers should be mindful of pre-screening vaccination questions that may implicate the ADA’s provision on disability-related inquiries. Most importantly, the EEOC states that if an employee receives an employer-required vaccination from a non-contracted third party, such as a pharmacy or other health care provider, the ADA’s “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions.

There are many nuances and laws that must be navigated relating to this pandemic and the new vaccines. When creating employment policies or conducting business in general at this time, it is vital that employers consult with a management company and an attorney who is knowledgeable about these new regulations.

Acara Partners’ consultants can provide additional guidance to ensure that your aesthetic medical practice and employees are protected with the COVID-19 vaccine. Click here to get in touch with our team. For an excellent attorney well-versed in the aesthetic medical industry, we recommend reaching out to Allyson Avila. She is well-informed on how the nuances of these laws will affect the legal landscape of your practice.

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