COVID-19 (Coronavirus) Update #39

Update from the COVID-19 Task Force

After consulting with legal counsel, TWU Local 556 has determined that Southwest Airlines has the right to ask whether you have or have not received the COVID-19 vaccination, as long as the Company is asking you directly. Southwest Airlines can not try to obtain the information from a healthcare provider or public health authority who has not been released to give such information by you. If you choose not to answer such a question by the Company, you are not subject to discipline. Since the question is legally appropriate, and not covered by our Letter of Agreement (LOA) concerning COVID-19 exposure pull policy, the Company may withhold pay for such pulls until the question has been answered by the Flight Attendant involved in the exposure event. If this happens, or you have further questions, please contact the COVID-19 Task Force at ctf@staging1.twu556.org for assistance. 

Update from Legal Counsel

There have been a number of questions and increased discussion recently regarding whether the Company may inquire as to the COVID-19 vaccination status of a Flight Attendant in accordance with applicable law. We have been in communication with legal counsel to examine these issues. Counsel continues to monitor and research the issue, but we felt it important to provide initial clarification on this topic.

The question has been asked whether Southwest Airlines is allowed to inquire whether a Flight Attendant has received a COVID-19 vaccine. The Equal Employment Opportunity Commission (EEOC) has offered guidance on this exact issue. In December 2020, the EEOC was asked whether an employer’s asking or requiring an employee to show proof of receipt of a COVID-19 vaccination constitutes a disability-related inquiry for purposes of the American with Disabilities Act (ADA). The EEOC provided this answer:

“No. There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Simply requesting 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.”

However, there are limitations. The EEOC went on to caution that “subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard.” Please let the Union know if you are asked follow-up questions such as these by Southwest following the inquiry as to whether you have received a COVID-19 vaccine.

The EEOC went on to clarify that if the “employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.” Southwest would be well advised to provide this clarification to Flight Attendants accordingly.    

There have also been a number of questions regarding applicability of the Health Insurance Portability and Accountability Act (HIPAA) to COVID-19 vaccination status and/or proof of vaccination. Applicability of HIPAA to vaccine-related information is dependent on a number of factors. However, if employees obtain a COVID-19 vaccine on their own and not from or in connection with their employer, the employee may choose to self-disclose the fact they have received a COVID-19 vaccine to their employer. 

We are continuing discussion with both the Company and Union counsel on this issue and will provide additional updates as we have them. Please continue to reach out to your Union with questions so that we may address these issues directly.

Union Contact Information

Use the TWU Local 556 Chat App to get your contract questions answered! You may reach a Grievance Team Specialist by calling (800) 969-7932 or utilizing the TWU Local 556 Chat App.

Office Hours: Monday–Friday 0800–1800 CT Weekends and holidays 0900–1700 CT Chat App Hours: Monday–Friday 0800–2200 CT Weekends and holidays 0900–1700 CT An Officer is always on call for emergencies such as drug and alcohol testing advice, family deaths/critical incidents, severe injuries on the job, and aircraft accidents or incidents at ALL times outside of office and chat hours; including holidays.