With more people becoming vaccinated against COVID-19 and returning to in person work, there has been some confusion about the legality of asking employees about their vaccination status. While it is generally legal to ask about vaccination status and to require employees to be vaccinated, there are some cases when doing so breaks privacy and Equal Employment Opportunity laws. When creating or amending your workplace’s vaccination policies, it is always important to consult an attorney and federal, state, and local laws. For general guidelines relating to this matter, we turn to the SHRM article, “Employers Should Be Cautious When Asking About Vaccination Status,” by Lisa Nagele-Piazza. Nagele-Piazza sorts these guidelines into three categories, which are summarized below.
Limit the Inquiry
When asking employees about their vaccination status, it is important to ensure that you are not soliciting additional medical information. The Equal Employment Opportunity Commission (EEOC) has clarified that asking about an individual’s vaccination status is permitted because the response is unlikely to provide disability-related information. That said, you should not ask individuals why they did not receive the vaccine because this would likely prompt them to reveal disability-related information, which is protected under the Americans with Disabilities Act (ADA). Along the same lines, employers are allowed to ask for documentation to prove an employee’s vaccination status, but they must ensure that the form of proof does not also include protected information. Finally, even if an employer requires everyone to be vaccinated, they must consider reasonable accommodations for employees who cannot receive the vaccine due to a disability or religious belief.
Maintain Confidentiality
Nagele-Piazza quotes several lawyers who emphasize that it is best practice to keep proof of vaccination confidential. They explain that while the EEOC does not consider vaccination inquiries to be medical inquiries, certain states may have laws that protect information on vaccination status. As always, you should check federal, state, and local laws before choosing how to store personal information.
Keep Policies Updated
Finally, it is important to remember that COVID-19 related policies are constantly changing on the federal, state, and local level. With infection rates constantly changing, it is no surprise that new policies are regularly put in place. Continue to stay updated on the latest guidelines and laws, and adjust your policies accordingly.
Want to learn more, see 6 Steps to Preventing COVID 19 OSHA Complaints.