Pub. 3 2021 issue 1

7 those questions should be maintained as confidential information, in a separate file (i.e., not the personnel file), in accordance with the provisions of the ADA. Those employers who administer vaccines themselves, or contract with a third-party provider to administer vaccines, should also be wary of their obligations under the Health Insurance Portability and Accountability Act (HIPAA) as to employee- provided information and vaccination records. (d) Employee Proof of a COVID-19 Vaccine Employers may request and require employees to show proof of receipt of a COVID-19 vaccination. Such a question does not amount to a disability-related inquiry in and of itself. The EEOC cautions employers who ask “why” an employee has not or cannot receive a vaccine. These follow- up questions may elicit information about a disability and would need to be “job-related and consistent with business necessity” in accordance with the ADA. Employers who wish to require that employees furnish proof of vaccination should instruct employees not to provide any medical information in connection with the vaccination record to avoid implicating the ADA. (e) Disability-Related Exemptions to a Mandatory Vaccine Requirement The new EEOC guidance also provides some direction to employers for responding to employees who indicate they are unable to receive a vaccine due to a disability. The EEOC reiterates that employers can require that employees “not pose a direct threat to the health or safety of individuals in the workplace.” However, if a mandatory vaccine requirement has the effect of screening out individuals with disabilities, the “employer must show that an unvaccinated employee would pose a direct threat due to a ‘significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.’” The EEOC instructs employers to conduct an individualized assessment of four different factors to determine whether a “direct threat” exists. These include considering: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.” If an employer concludes there is a direct threat, the EEOC indicates that the employer may “exclude” the employee from the workplace, but cautions employers against terminating the worker without first considering whether there may be an accommodation available. The EEOC advises that employers should engage employees “in a flexible, interactive process to identify workplace accommodation options” and also notes that one factor that warrants consideration may be the prevalence of employees in the workplace who have already received the vaccine. Practically speaking, it seems this analysis will still hinge on individual circumstances related to things like the nature of the employee’s disability, the work conditions, and the ability to mitigate potential hazards through job modifications such as increased social distancing, PPE, telework, etc. continued on page 8 ZURICH INSURANCE. FOR THOSE WHO TRULY LOVE THEIR BUSINESS. This is intended as a general description of products and services available to qualified customers through the individual companies of Zurich in North America and is provided solely for informational purposes. Nothing herein should be construed as a solicitation, offer, advice, recommendation, or any other service with regard to any type of insurance or F&I product underwritten or distributed by individual member companies of Zurich in North America, which include Zurich American Insurance Company and Universal Underwriters Service Corporation (1299 Zurich Way, Schaumburg, IL 60196). Certain restrictions may apply. All products and services may not be available in all states. Please consult with your sales professional for details. (C) 2020 Zurich American Insurance Company. All Rights Reserved. The Zurich Advantage. Innovative. Backed by the strength of a global organization, we embrace the opportunity to inspire the growth and success of our dealer customers. We are focused on driving technology and services that can keep your business evolving and thriving in a dynamic industry. Bring Zurich’s innovation to your dealership. Contact Ken Beus at 801-367-8161 OR AJ Jackson at 801-529-8662. www.zurichna.com/automotive Results DRIVEN by Zurich.