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Navigating HIPAA, Civil Rights, the ADA, and the COVID-19 Vaccine in the workplace

By June 15, 2021July 13th, 2021No Comments

As COVID-19 cases fall and mask mandates are lifted, employers in the United States are slowly bringing employees back to the workplace — and wondering if they can ask workers for proof of their COVID-19 vaccination status. Employers need to be mindful as they balance the private health decisions of their employees with the requirements of doing business, which sometimes may require acquiring the vaccination status of staff.

While a flurry of posts circulating on social media claim that provisions under the Civil Rights Act and the Fourth Amendment of the Constitution prohibit employers from asking employees for their vaccination status, legal experts and The U.S. Equal Employment Opportunity Commission (EEOC) say otherwise.

The consensus is yes — you can ask employees to provide proof of their vaccination status, but some exceptions apply. Importantly, employers must acknowledge that asking comes with its own risks and understand that certain inquiries could violate American with Disabilities Act (ADA) regulations on disability-related inquiries. They will also have to consider how to proceed if an employee refuses to get vaccinated or provide proof of vaccination.

The decision to require personal COVID-19 vaccine information is nuanced and should be made with careful consideration and guidance. Employment law and the privacy of your employees must both be considered. It is always recommended to involve an employment law attorney. With that said, here is what you need to know:

Can I legally require my employees to get a COVID vaccine?

 Yes. Employers can require that all employees physically entering the workplace be vaccinated for COVID-19, but they are subject to the “reasonable accommodation provisions” of Title VII, the ADA, and other EEOC considerations.

What about employees with disabilities or religious beliefs that prevent them from being vaccinated?

If an employee chooses not to get vaccinated for COVID-19 because of a disability or sincerely held religious belief, employers must provide them with a reasonable accommodation — like requiring that they work remotely or wear a mask while at the workplace.

However, if providing a reasonable accommodation would pose an “undue hardship,” defined by the ADA as a “significant difficulty or expense,” an employer could choose to ban the employee from the physical workplace. The decision to ban an employee ultimately comes down to if a “direct threat” to the health or safety of other individuals in the workplace exists and if it can be reduced via reasonable accommodations.

“These considerations do not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic,” the EEOC guidance states.

The EEOC emphasizes that employers who establish a vaccine requirement must be prepared to respond to allegations that the requirement has a “disparate impact” or “disproportionately excludes” employees based on race, color, religion, sex, or national origin.

According to the EEOC, “Employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.”

Do I have the right to ask my employees about their vaccination status?

Yes, employers can legally ask their employees if they have been vaccinated — and some jurisdictions are even requiring employers to track the vaccination status of their employees.

The EEOC has clarified that asking an employee if they received the vaccine does not count as a “disability-related inquiry” under the ADA. Legal experts agree that private businesses and organizations can require employees to provide vaccination status as a condition of employment if they offer a reasonable accommodation.

“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,” says Joseph Lazzarotti, Principal at Jackson Lewis P.C. “However, follow-up questions regarding why an employee chose not to get vaccinated may elicit information about a disability and would be subject to the pertinent ADA standard.”

Christine Hawes, Counsel at Crowell & Moring LLP,  told HR Dive that employers should be careful before asking follow-up questions and be sure to assess why they need the information, how they plan on using it, and how potential discrimination issues might come into play.

Best practices, according to Young Moore Attorneys, could include warning employees not to provide additional, personal medical information when providing proof of vaccination.

What are the privacy responsibilities if I obtain an employee’s vaccination status?

If an employer asks employees about their vaccination status, they are required to maintain the confidentiality of the medical information. While EEOC laws allow employers to require that employees bring in documentation proving their vaccination status, the ADA requires that this information be kept confidential and stored separately from other personnel files.

Is it a HIPAA Violation to ask employees about COVID vaccination?

No. The Health Insurance Portability and Accountability Act of 1996, better known as HIPAA, was established to protect an individual’s sensitive, personal health information from being shared without their consent. It specifically applies to Healthcare providers, Health plans, healthcare clearinghouses, and their business associates.

While organizations not covered under HIPAA are subject to local and federal privacy protection laws, it is not a HIPAA violation to ask an employer for proof of vaccination. On the other hand, an employee’s healthcare provider would be in violation of HIPAA laws if they disclose a patient’s vaccine record to their employer without proper authorization.

Legal experts say that public misconceptions about HIPAA are common: people often think that the law prohibits the sharing of any and all information regarding a patient’s health.

About the author

Lia Tabackman is a freelance journalist, copywriter, and social media strategist based in Richmond, Virginia. Her writing has appeared in the Washington Post, CBS 6 News, the Los Angeles Times, and Arlington Magazine, among others.

Image by Mario Aranda from Pixabay.

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