DOJ won’t ask about employees’ vaccine status as federal government goes maskless

The Department of Justice (DOJ) won’t ask about employees’ vaccination status even as vaccinated employees have been given the green light to go maskless in the agency’s buildings.

The Friday memo obtained by The Hill warns managers not to ask whether employees have been vaccinated. The new policy, however, is a departure from DOJ guidance in February that said employers have the right to ask employees about their status.

“Supervisors and managers should not ask about an employee’s vaccination status or use information about an employee’s vaccination status to make decisions about how and when employees will report to a workplace instead of teleworking,” DOJ told employees in a Friday email from the office of DOJ’s assistant attorney general for administration. 

The policy comes shortly after the federal government said vaccinated employees could start going maskless indoors following new guidance from the Centers for Disease Control and Prevention.

But the email shows DOJ is grappling with the same COVID-19 policy questions as other workplaces and is taking a more restrained approach than what the law allows.

DOJ’s February guidance set out guidelines for asking employees whether they have been vaccinated as well as how to track that information.

DOJ’s various offices “should strongly consider policies that encourage vaccination and continue to consider alternative work options for unvaccinated employees,” the agency said at the time.

Managers “should have a valid business reason for requesting this information,” DOJ wrote, noting that they should not ask why an employee declines the vaccine as “such questions could elicit information about health or disability.”

“Inquiring about an employee’s vaccine status for business purposes does not likely implicate discriminatory issues,” the agency said.

The agency can track who has had the vaccine but the lists “should be maintained in secure administrative or management files … and [be] accessible only to component personnel who need this tracking information to perform their job duties.” 

The memo notes that mandatory vaccination policies are lawful and that the Equal Employment Opportunity Commission allows employers to require a vaccine once it is generally available.

DOJ, like many other agencies, has not yet adjusted their telework policies and many employees are still working from home.

DOJ did not immediately respond to a request for comment Monday about its new policy.

Friday’s email does note that employees who would like to continue wearing masks may do so.

“As we go forward, we ask everyone to respect the wishes of our colleagues and visitors and ensure that anyone who chooses to continue wearing a mask while in department buildings and facilities may continue to do so without interference,” DOJ said. 

–Updated at 9:37 a.m.