Employers are mandated to protect the safety and well-being of the entire workforce, which entitles them to know whether or not employees are vaccinated against COVID-19. This includes the right to ask for proof of confirmation and requesting a copy of vaccination cards or medical documentation of employees’ status. Under the Occupational Health and Safety Act’s general duty clause, employers are required to maintain a work environment that is free from hazards that can cause physical harm.
In May 2021, the Equal Employment Opportunity Commission (EEOC) determined that employers asking the vaccination status of their employees does not violate federal equal opportunity laws. Generally speaking, employers have the right to mandate a company policy stating all employees must be vaccinated or wear a mask to physically enter any of the company’s properties. Some employers may require all employees continue to wear a mask on premises, particularly if there is a large disparity between vaccinated and non-vaccinated employees. Additionally, federal laws may require employers to offer exemptions or make reasonable accommodations to employees who are not vaccinated based on religious beliefs or a disability.
How Do Employees Feel About Vaccination Policies?
A recent survey by experience management company, Qualtrics, reports that some workers have mixed feelings about COVID-related work mandates. Those surveyed report:
If the employer institutes a policy requiring vaccinations, masks, or both:
- Seventy-five percent of unvaccinated employees would consider leaving their current job.
- Forty-five percent of unvaccinated employees would strongly consider leaving their current job.
- Fifty-five percent of all employees would consider reporting an unvaccinated coworker.
- Twenty-three percent of all employees would strongly consider reporting unvaccinated coworkers.
If the employer does not institute a policy requiring vaccinations, masks, or both:
- Forty percent of all employees reported they would consider leaving their current job.
- Fourteen percent of all employees said they would strongly consider leaving their current job.
Overall:
- Fifty-nine percent of all workers support the vaccination mandates.
- Forty-two percent of all workers want their employer to enforce federal COVID mandates.
- Thirty-nine percent of all workers do not want their employer to enforce federal mandates.
What Can My Employer Ask?
While employers are well within their right to ask about your vaccination status, that is essentially all and only what they should inquire about. Asking for further clarification from those who answer “no” when asked about vaccination status could result in eliciting medical information that is protected under other privacy laws.
Employers are encouraged not to ask for information that is unnecessary and not included in the right to question employees regarding COVID vaccinations. Instead, employers should ask for your status in a targeted way that your answers will not disclose other medical information. Examples include:
- I am fully vaccinated and will provide the confirmation required.
- I am partially vaccinated and will provide the confirmation required once fully vaccinated.
- I have not been vaccinated but am planning to be and will provide the required confirmation.
- I am not vaccinated, nor intend to be, due to religious or medical reasons.
- I am not vaccinated, nor intend to be, not due to religious or medical reasons.
Once obtained, your employer is required to treat your vaccination information as confidential and stored separately from your employee personnel file. Your employer should limit who has access to your information, which should only be used to determine employees who will be required to wear a mask, socially distance, or quarantine following a COVID exposure.
Is Asking About My Status a Violation of My HIPAA Rights?
There is much misconception surrounding whether asking employees about the status of their COVID vaccination violates their rights under the Health Insurance Portability and Accountability Act (HIPAA). It does not, in fact, it does not apply at all.
In the United States, health information is protected under the HIPAA, which forbids the use or disclosure of vaccination records, test results, certain diagnoses, treatment, payment, and more. However, the HIPAA applies only to HIPPA-covered institutions, such as health care providers, plans, clearinghouses, and business vendors of the institutions with access to medical information. As most employers and individuals are not HIPPA-covered entities, the law does not apply.
HIPAA laws do not forbid asking an individual about their vaccination status, nor do any other federal laws. Asking for the information is not a violation or a crime. The HIPAA is intended for health care providers, prohibiting them from disclosing confidential patient information.
Just as there is no law whether an employer can ask about COVID vaccinations, there are also no laws requiring an employee to answer. Keep in mind, however, that not answering could have consequences if the employer has developed a policy regarding the employee vaccinations and employment.
Employers, including HIPAA-covered entities, are within their rights to make mandatory vaccination and facemask policies for all applicable employees and prohibit unvaccinated employees from entering the property.
Is My Employer Violating the Americans with Disabilities Act?
Though federal laws permit employers to ask about your vaccination status, that is all they should be asking, largely due to the Americans with Disabilities Act (ADA). The ADA protects people from disability discrimination in employment, access to local and state government programs, public accommodations, transportation, and communication.
According to the EEOC, asking certain employees about their vaccination status could possibly violate the ADA. Generally, asking for proof of vaccination is not considered an ADA violation, however, subsequent questions regarding an individual’s status might. For instance, if an employee discloses they have not been vaccinated and the employer inquires as to why, the resulting answer or proof may reveal information regarding the employee’s disability, which would be an ADA violation.
There are workarounds, according to the EEOC, that could protect both the employer and employee from violating the ADA. If the employer requires proof of vaccination from the employee’s health care provider or pharmacy, the employer should instruct employees not to include any medical information other than proof of vaccination.
It should be noted that the ADA does permit businesses and employers to deny persons with disabilities work, goods, or services if their presence poses a threat to the safety and health of others. Doing so, however, is permitted only in situations where amending current policies, practices, and procedures do not eliminate the threat or harm to others.
Can My Employer Verify My Status if I Do Not Provide Proof?
Verifying employees’ vaccination status is one of the most pressing concerns for employers, along with guidance on how to treat vaccinated and unvaccinated employees differently. Currently, no national registry or standard for certifying COVID vaccinations exists for employers to reference and to verify the documentation you provided as proof. The vaccination record cards issued upon receiving the vaccine are not government regulated like driver’s licenses and passports, preventing employers from determining whether the card has been falsified or altered.
Philadelphia Employment Lawyers at The Gold Law Firm P.C. Advocate for Employees’ Rights
If you feel your rights regarding the disclosing of medical information have been violated in regard to your COVID vaccination status, our experienced Philadelphia employment lawyers at The Gold Law Firm P.C. are available to help. Call us today at 215-569-1999 or contact us online for a free consultation. Located in Philadelphia and Pennsauken, New Jersey, we serve clients throughout South Jersey and Southeastern Pennsylvania, including Wilkes-Barre, Scranton, Northeast Philadelphia, Bucks County, Chester County, Delaware County, and Montgomery County.
