What can my employer require?
The pandemic has raised various legal questions for employers navigating through state health guidelines and differing opinions on vaccines.
The Americans with Disabilities Act, which governs anti-discrimination laws for businesses with more than 15 employees, has many implications for employers wishing to mandate face coverings or COVID-19 vaccines.
Kathy Gips, the Director of Training at the New England ADA Center, sat down with The Monitor to answer some of the most pressing questions. The following has been edited for clarity and brevity.
Can I be asked to show proof that I have a medical exemption to a face mask mandate?
Generally I would say no.
Decisions on whether or not something can be done or whether or not something is a violation is made by the Department of Justice. If we don’t have a court case, or we don’t have a Department of Justice statement, then we are trying to figure out what is the best answer here.
The Department of Justice, does not really want people to be asking for medical information. If you were going to summer camp and they needed to make sure you could participate safely in the activities, requesting medical information would be fine. In this kind of situation, going to school or going to the store or a restaurant, we would not recommend that somebody require medical documentation.
To complicate things a little bit more, it’s also not clear that in every situation it’s really safe for people to be together who are not masked. So, there’s even kind of a question of “do I have to let somebody in who’s not masked, just because they have a medical exemption.”
Is there anything to prevent someone from fabricating a medical exemption to a mask mandate?
No, there’s nothing. Cities and towns and everybody else are really going to have to rely on people being honest — it’s been a very tricky situation.
Can my employer ask for proof that I have a medical exemption for the COVID-19 vaccine?
Title One (of the Americans with Disabilities Act) allows employers to require medical documentation on a reasonable accommodation request if it’s not obvious. If you’re blind and you say I want to be able to bring my service animal to work, I can’t require medical documentation.
But if you came to me and said I have a medical condition and due to the medical condition I can’t be vaccinated, well that’s not obvious, the employer has a right to know that you have an ADA disability. That would be a place where, yes, an employer can require medical documentation, that’s very clear.
Many specific questions about how businesses and employers should enforce mandates have not yet been answered by federal agencies. Are you expecting to get any more clarity from those agencies any time soon?
I don’t think so.
When COVID started, the Equal Employment Opportunity Commission was right out of the door with technical assistance for employers and employees — like really good stuff. But we didn’t get anything comparable from the Department of Justice or any other federal agency. So I don’t think we’re going to get it now, because we didn’t get it back then.
Any place that things are not clear, where haven’t gotten really good guidance from a federal agency that’s responsible for enforcing the regulations, then you’re kind of waiting for lawsuits.