Employers Should Be Careful Asking If An Employee Has Been Vaccinated.
May 27, 2021 – Now that many federal and state officials have relaxed COVID-19 safety rules for people who are fully vaccinated, employers may want to ask workers for proof of their COVID-19 vaccination status. But employers should be careful not to ask for more information than is necessary.
According to the U.S. Equal Employment Opportunity Commission (EEOC), employers are allowed to ask an employee about their vaccination status. However, it is very important that additional questions are not asked that would fall under the Americans with Disabilities Act (ADA). The mere asking about vaccination status would not fall under the ADA. However, employers can run afoul of the law if they ask follow up questions such as why an employee did not get vaccinated or other medical topics. Asking these types of questions may elicit disability-related information, which would fall under the ADA.
In addition to federal laws, employers should also check applicable state laws. Many states will have their regulations as to what can be asked of an employee.
For this reason, it is very important employers have employees that have been trained in what can and can not be asked of the employees inquiring about vaccination status. In many cases the collection of information from employees is left up to an employee supervisor who is not a trained HR professional. It is our suggestion that the collection of vaccination related information be performed by the HR department. This ensures the impermissible questions or information is not obtained that could put the company at risk.
Is asking about a COVID-19 vaccination HIPAA violation?
NO, HIPAA doesn’t ban questions about your vaccination status. HIPAA, also known as the Health Insurance Portability and Accountability Act of 1996, includes provisions to protect a person’t identifying health information from being shared without knowledge or consent. However, the law only applies to specific health-related entities. Some examples include, insurance providers, health-care providers and their business associates. Therefore, if someone were to publicly share private details about your health, they are not actually in violation of HIPAA because they aren’t one of the specifically covered entities.
There is nothing in HIPAA that warns about asking people about their health, however, where a business is concerned, they must be careful not to dig too deep. Employers must be aware of respecting ADA rules, as mentioned previously.
When is it appropriate for an employer to ask about the COVID-19 Vaccine?
One school of thought is that it really depends on the situation and risk factors. For example, in a crowded workplace situation, it may actually make sense to ask, if it is relevent to the safety of customers or other workers. State Laws, however are ever-changing and they have the authority to pass new laws banning or controlling entry or work conditions related to vaccines, masking and social distancing. Knowledge is your friend, and employers should stay up-to-date with the latest state regulations regarding COVID-19 safety.
If employers do require proof of vaccination, they should control access to the information and limit its use by keeping information confidential and provide the level of protection they would for employee medical information.
Another thing to consider is that data could be protected under state law. An example is the California Consumer Privacy Act. Employers that collect vaccination status information should be aware that collecting such information likely triggers the law’s notice requirements, therefore, employers should ensure they have issued this notice when collecting vaccine-related information.
Keep Policies Updated
The situation with the COVID-19 pandemic is changing often, and Federal, State and local authorities are adjusting their COVID-19 requirements regularly, which can have an impact on the business reasons why an employer might need to know an employee’s vaccination status.
It is important that employers have policies in place on how they will address issues such as the vaccination, requests of information and other COVID-19 related matters. These policies must be communicated to employees to ensure there is an open dialogue on what is expected of each party. It is also important that employers and employees understand that the pandemic is a very fluid situation and can change as new information and regulations are issued. Therefore, it is imperative that employers have a trusted resource to keep them up to date on current changes and modify their policies as needed.