Now that people who have been vaccinated are allowed to throw away their masks, the question on people's minds is, "How do we enforce that?" Employers want to know if they can ask their employees for proof of vaccination.
Most employers are allowed to ask their employees for proof that
they have received vaccines. Asking for proof of a vaccine
does not violate HIPAA or the ADA.
What about HIPAA and health care privacy laws?
For most employers, the Health Insurance Portability and Accountability Act (HIPAA) does not apply. HIPAA only applies to "Covered Entities." Generally, covered entities are health care providers or insurers. If an employer is not a Covered Entity, then none of the HIPAA privacy and security provisions apply. This means that if an employer asks to see proof of vaccination, an employee cannot say that it is a violation of HIPAA or any medical privacy laws.
Also, HIPAA generally prohibits disclosure of health information by a Covered Entity. If the employer makes a copy of a vaccination card and sticks it in the employee's file, there is no disclosure. The vaccination card might be a medical record that needs to be kept separate from the regular employee file, but sticking it in a file is not disclosure.
What about the ADA?
Asking for proof of vaccination does not violate the Americans with Disabilities Act (ADA) either. The U.S. Equal Employment Opportunity Commission has provided an answer to this question:
Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry?
No. There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Simply 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. However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be "job-related and consistent with business necessity." If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.
What do I need to be careful about?
The ADA does prohibit employers from making "disability-related inquiries" of employees. A disability-related inquiry is a question that would require an employee to talk about his or her disability. Asking an employee if they are vaccinated is not a disability-related inquiry. It is a yes or no question.
However, following that up with "Why are you not vaccinated?" could be a disability-related inquiry. The answer could be something like the employee has a medical condition that makes it dangerous to get a vaccine.
The ADA also requires employees to make "reasonable accommodations" in the workplace. The legal requirement to make a reasonable accommodation only applies to people with a disability. An employer needs to treat each employee's request for a reasonable accommodation individually.
But in general, if an employee without any disability simply does not want to get vaccinated, the employer is probably not required to make an accommodation for that employee.
The issue of reasonable accommodations - especially if an employee requests to work from home - will be a huge topic of discussion over the remainder of the year. There are lots of questions that go into this, like:
- Is being in the office in person an "essential function" of the job?
- Does the accommodation create a "hardship" for the employer?
- Are there other accommodations that will work?
- And many others.
These ADA questions are the same ones that every employer faced before we ever heard about a novel coronavirus. Though today, they have an entirely new sense of urgency.
Originally published 17, May 2021
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