Is It Legal for a Company to Request Vaccination Status

In addition, employers who administer vaccines to employees in the workplace, either themselves or through a third-party medical provider, should consider whether suspected injuries sustained as a result of the vaccination trigger workers` compensation coverage. States are beginning to address this issue, and employers` obligations may vary from state to state. Yes, HIPAA does not prevent employers and businesses from asking their employees and visitors if they have been vaccinated against COVID-19 and requiring proof of that vaccination. Once you have the information, it must remain confidential, which means that it will not be shared with others except in certain circumstances and as mentioned, not even kept in an employee`s personnel file. No. The privacy rule does not prevent an individual from disclosing whether they have been vaccinated against COVID-19 or any other disease. The Privacy Rule does not apply to individuals disclosing personal health information. It applies only to covered businesses10 and, to some extent, their business partners.11 Therefore, the privacy rule does not apply if an individual discloses their own vaccination status to another person, such as a colleague or business owner. Regardless of approval status, the EEOC and the Department of Justice have stated that employers can require vaccines approved under EEE. Therefore, employers may require their employees to receive the COVID-19 vaccine before any of the vaccines receive full FDA approval. However, if an employee refuses to be vaccinated because of a disability or sincere religious beliefs until the FDA grants full approval (citing safety or other concerns), an employer must provide the employee with adequate housing until the worker can be vaccinated. Stephen Riga, an attorney at Ogletree Deakins in Indianapolis, said employers should avoid medical claims that could go against the Americans with Disabilities Act (ADA). However, he noted that simply requesting proof of COVID-19 vaccination is allowed under the ADA, as the employee is unlikely to be asked to provide disability-related information.

Yes. The EEOC guidelines make it clear that providing an incentive for an employee to „voluntarily submit documents or other certificates of vaccination received in the community“ is not a disability-related test and is permitted by federal law. Employers can use vaccination surveys and require employees to upload photos of their immunization records or other proof of vaccination. Employers may obtain proof of vaccination from employees, but must keep this information confidential and separate from the employee`s personal records. Here are some tips for employers who decide to ask employees for proof of their vaccination status. Question 2: Can an employer mandate vaccination for new but not existing employees? Given the disruption of the COVID-19 pandemic for businesses around the world, employers are eager to get their workforce back to „normal“ as soon as possible – and yet this desire is forcing new questions about vaccinations and related mandates. Employers may have legitimate business reasons to ask employees for their vaccination status, but employers should be careful not to investigate further, said Hannah Sweiss, an attorney at Fisher Phillips in Woodland Hills, California. However, the EEOC has issued specific guidance for employers that offer incentives to get vaccinated if the employer or its representative is the party administering the vaccine.

If an employer or its representative administers the COVID-19 vaccine to employees, the employer can only offer incentives, including rewards and penalties, that are „not significant enough to constitute coercion.“ This restriction only applies if the employer or their representative administers the vaccine (as opposed to third-party employees in the community, such as pharmacies or health care facilities, being vaccinated), as vaccines require employees to answer questions about disability-related screening prior to vaccination. And a significant incentive could make employees feel pressured. disclose protected medical information to their employer. Question 3: Can an employer require proof of vaccination from its employees? The Privacy Rule governs how and when relevant entities may use and disclose PHI that relevant entities create, receive, maintain or transmit. The rule prohibits an employer or business, including companies covered by HIPAA, from asking if a person has received a particular vaccine, including COVID-19 vaccines. However, the rule regulates how and when an affected unit can use or disclose information about a person`s vaccination status. Question 4: Can an employer have different vaccination requirements for different parts of its workforce? Under the Americans with Disabilities Act (ADA), employers must provide reasonable accommodation to skilled workers with disabilities, unless they can prove that the housing would cause undue hardship. Reasonable accommodation may include appropriate adjustments or changes to employer policies, including requirements imposed by a mandatory vaccination policy. „Are you fully vaccinated?“ This seems to have become a million-dollar question that employers want to ask their employees, but there is confusion about the legal contours of this falsely dangerous question. Many employers continue to question the legal implications of asking about an employee`s vaccination status. While the EEOC has confirmed that you can legally ask employees about their vaccination status without violating federal anti-discrimination laws (assuming the question is limited to a yes or no answer), what about other privacy laws? In particular, what about the often misunderstood HIPAA, which seems to be cited by anyone who disagrees with any type of COVID-19 security protocol? This idea will dispel myths from reality and give employers practical – and legally correct – advice on the subject.

No. The data protection rule does not apply to employment records, including employment records of covered entities19 and business partners20 acting in their capacity as employers.21 Therefore, the data protection rule generally does not govern the information that may be requested from employees under the terms and conditions of employment that a company or a covered business partner may impose on its employees. 22 such as the ability of an entity or business partner23 to require its employees to provide documentation attesting to their COVID-19 vaccination or to disclose to their employer, other employees, patients or members of the public if they have been vaccinated. Yes, in accordance with the updated EEOC guidelines, but subject to reasonable accommodation and as long as employers do not treat workers differently on the basis of protected characteristics. Working with staff to address vaccine concerns and ensure regulatory compliance is a better approach. No. Federal anti-discrimination laws prohibit an employer from refusing to hire a candidate on the assumption that the candidate will seek reasonable accommodation or an exemption from an employer`s mandatory vaccination policy. In the absence of national or local laws to the contrary, companies may ask visitors to provide proof of vaccination at the entrance of their establishment without even having to store the information. However, you should consult your FP lawyer regarding country-specific restrictions before acting in this manner. Yes.

An employer may impose a „severe“ vaccination mandate for health and safety reasons, such as: employees who interact with the public or work closely with other employees must be vaccinated while imposing a „mild“ vaccination mandate or offering incentives to vaccinate other employees. Yes. In addition, the employer may require the new employee to wear a mask, maintain social distancing, work remotely if possible, and undergo regular COVID-19 testing until the new employee provides full proof of vaccination (or provides a valid religious or disability-related basis for refusing vaccination). In particular, questions and answers on U.S. technical assistance (updated October 13, 2021). The Equal Employment Opportunity Commission (EEOC), titled „What You Need to Know About COVID-19 and the ADA, the Rehabilitation Act, and Other Equal Employment Opportunity Laws,“ also clarifies that employers can ask workers for information about their COVID-19 vaccination status. However, the EEOC clarified that information about an employee`s COVID-19 vaccination status is confidential medical information under the Americans with Disabilities Act („ADA“). While employers may require employees to provide documentation or other vaccination certificates, this information, like all medical information, must remain confidential and separate from the employee`s personal records under the ADA. Fortunately, Practical Law`s editors monitor updates and developments to the mandate and vaccination ban, so you don`t have to. They have also put together resources that answer some of the most common questions about COVID-19 vaccination and the workplace and provide solutions. Any mandatory vaccination policy (1) must be in writing; 2) must include an exemption if a worker provides a valid disability or religious reason for not being vaccinated; and 3) should have a protocol for processing requests for reasonable accommodation.

HIPAA has unfortunately entered popular culture recently, thanks to misguided individuals who believe that the law somehow creates a magic shield that frees them from complying with many pandemic-related requirements.