Shopper Alert: Can Massachusetts Employers Accumulate COVID-19 Vaccination Playing cards From Workers?

With the spread of COVID-19 vaccines, many employers were faced with the question of whether and how vaccination information could be requested from employees. As explained below, Massachusetts employers can generally request and collect this information (including vaccination cards). However, whether this is a good idea is another story.

Fortunately, the US Equal Employment Opportunity Commission (EEOC) has provided some guidance on the matter. The American With Disabilities Act (ADA) generally prohibits employers from making “disability-related inquiries” (that is, questions likely to provide information about a disability), except in certain limited circumstances where the question is “job-related and consistent with “Represents business necessity. “However, according to the EEOC guidelines, simply asking or requiring an employee to provide evidence of receipt of a COVID-19 vaccination is not a ‘disability-related investigation’ and as such does not imply the ADA.

However, there are a few things that employers need to consider when deciding whether to require or require proof of vaccination status. First, as indicated in the EEOC guidelines, follow-up questions from the employer (e.g. why an employee has not received a vaccination) can constitute “disability-related inquiries” and as such may lead to ADA violations. Employers should be careful when asking such questions. In this context, the EEOC also suggests that employers asking workers to provide evidence of COVID-19 vaccination may warn those workers not to provide medical information as part of this evidence in order to avoid any implication of the ADA.

Second, information about an employee’s vaccination status should be kept private and confidential, and employers who choose to collect and retain such information should ensure that it is kept in a safe place separate from the employee’s personal file.

Third, as explained in our previous customer notification, employers must be aware that the obligation to have COVID-19 vaccinations implies the ADA and also Title VII of the Civil Rights Act and can potentially lead to violations of those laws (as well as the Massachusetts Fair Employment Practices Act) if employers are not careful. Employers need to remember that they have an obligation to adequately accommodate workers with disabilities who have righteous religious practices or beliefs that may prevent them from receiving a COVID-19 vaccination.

Before employers decide to request or collect vaccination information, they should take time to consider why they want it and how to respond if employees refuse to provide such information. The fact that collecting vaccination cards is legal doesn’t necessarily mean it is a good idea for your workplace. If an employer doesn’t have an immediate need for vaccination data, does it really make sense to get (and hold) this personal health information? What impact could this have on employee perception and morale? The answers can vary from case to case.

Client tip

Employers should keep up to date with all developments in federal, state and local law regarding the requirement and collection of COVID-19 vaccination information.