As businesses are reopening to indoor activities, many people are wondering what whether employers have the right to ask workers if they have received the COVID-19 vaccine, or request proof of vaccination. There are several laws that govern private heath information and status, and it’s important to talk to an attorney before deciding whether to require proof of vaccination as an employer, or deciding whether to disclose your vaccine status as an employee. These tips can help you talk with your attorney about this decision.
Tip 1: Employers may ask if employees have received the vaccine, and they must keep employee health information confidential and separate from their personal file if they do.
Many people erroneously believe that the Health Insurance Portability and Accountability Act (HIPAA) applies to employee health information. It does not. HIPAA only applies to “covered entities,” which includes health insurance plans, healthcare clearinghouses, and healthcare providers that use electronic means of transiting certain health information. If an employer does not fall into one of these three categories, then HIPAA does not apply.
And there may be good reasons for employers to gather and retain this information. Employers could use this information to inform decisions about reopening, or expanding the number of individuals in a particular meeting space, and help track any outbreaks. When an employer who is not one of the three healthcare-related entities asks an employee directly for their health information, the person making the disclosure of medical information is the individual themselves – not their doctor or healthcare provider – the HIPAA does not apply. No law prohibits you from sharing your personal medical information with anyone.
The Americans with Disabilities Act (ADA), however, requires an employer who receives any health information about an employee must keep that information secure, in a file separate from the employee’s personnel file, and may only disclose it in limited situations and to specific individuals. If you are an employer considering asking if your employees are vaccinated, be sure to think about how you will retain this information and keep it secure. If you are an employee who is being asked to share private medical information like your vaccine status, you can and should inquire about where this information will be stored and how it will be used.
Tip 2: According to guidance from the Equal Employment Opportunity Commission, employers may require employees who are physically present in the workplace to be vaccinated, subject to the reasonable accommodation provisions of Title VII, EEO, and the ADA.
This is where the law gets complicated, and it imperative to talk with an attorney knowledgeable in this area.
Under the ADA, employers can have a policy with “a requirement that an individual not pose a direct threat to the health or safety of individuals in the workplace.” An unvaccinated person is not automatically a threat to others, however, and the employer might also have to make accommodations depending on the reasons behind the vaccine hesitancy. For example, an employee with a religious objection or a disability may need to be excused from the requirement or accommodated in other ways (unless it would cause an undue hardship on the employer). If the objecting employee is a member of a union, the employer may need to bargain with the union and reach and agreement before mandating vaccines.
Because there are so many intersecting laws and regulations, whether to create a vaccine mandate for your business or to comply with such a requirement requires applying complex laws to your unique circumstances. Call today to make an appointment to discuss your options.
