Vaccination issues and vaccination regulations are high on the agenda in workplaces across the country. One of the biggest questions we hear is whether you can ask employees to provide proof of vaccination. If they refuse, what remedies do you have? Let’s dive in and address this burning question.
Q: “What legal remedy does an employer have against an employee if we ask him to fill out a certificate stating the employee’s Covid vaccination status? Can the employer terminate the employee or prevent him from reporting to work until the form is completed? Does the company violate HIPAA, ADA, or PHI laws by asking the employee to respond to the request? ”- Anonymous, Hawaii
A: The Americans with Disabilities Act (ADA) and many similar state discrimination laws prevent employers from soliciting medical information from employees unless the question is compatible with both job and business needs. The Equal Employment Opportunity Commission (EEOC) interprets the law and assists employees who believe they have been discriminated against in investigating their claims.
When can an employer request medical information? The EEOC has said employers can ask workers if they have a fever, symptoms of Covid, or have been tested for Covid as employers need this information to meet their obligations to provide a safe job. The EEOC has also stated that a person’s vaccination status is not a medical examination in and of itself and that employers can ask workers for this information. Workers who refuse to disclose their status will be treated as unvaccinated and may be expelled from the job.
The Health Insurance Portability and Affordability Act (HIPAA) is a law that is primarily intended to enable people with pre-existing conditions to qualify for health insurance. The law prevents healthcare providers who conduct certain electronic transactions from sharing certain private patient health information (PHI) with others without the patient’s consent. However, once a patient has consented to this information being shared, it is no longer protected. Most employers do not fall under HIPAA in their role as employers. (Some employers who are also health care providers or insurance administrators may have HIPAA obligations and need to keep patient information out of employee records – for example, if an employee is also a patient).
Simply put, a person’s vaccination status in the workplace is not protected as a PHI. In contrast, medical information that employees share with their employers – results of tests for Covid, z is a need to know.
Employees might be surprised that the laws don’t immunize them against adverse labor law measures if they don’t disclose their vaccination status or get a Covid vaccination when it is safe to do so. However, the United States has a long history of putting public health above individual choice – the history of the country’s response to pandemics is fascinating and instructive.
In addition, prior to the Covid outbreak, many employers regularly (and no doubt still do) monitored their employees for a variety of health conditions, including tuberculosis, and for workplace hazards such as heavy metals and loud noises. Vaccination status is important for employers to know if they need to exclude people who are in close contact with people with Covid from the workplace or if they can continue to work unless they develop symptoms or a positive test result. You may also need this information to determine whether employees need to wear masks when working indoors – although the recent delta resurgence of Covid has led to renewed CDC recommendations and local ordinances that oblige everyone, regardless of who they are Wearing vaccination status masks, a sad reminder that the virus that causes Covid is mutating faster than we can vaccinate our population.
To answer your question, questions about employees’ Covid vaccination status are not requests for PHI or medical information. Employers are not prohibited from finding out the vaccination status of their employees during a global pandemic when this information is clearly needed for business.
Employers I’ve spoken to don’t want to take disciplinary action against anyone who refuses to disclose their status or, worse, lies about it – but they can do so when there is no other way to maintain a safe job.