Can we ask for proof of Covid Vaccination? Isn’t this a HIPAA violation or an illegal inquiry under the ADA or somehow confidential information?
Employers can ask for proof of vaccination unless there is a state or local law or order to the contrary.*
When an employer is requesting or reviewing medical information in its capacity as an employer, as it would be when asking about an employee’s vaccination status, it is considered to be an employment record. In such cases, HIPAA would not apply to the employer. The Americans with Disabilities Act (ADA) will govern the collection and storage of this information.
The Equal Employment Opportunity Commission (EEOC), which enforces the ADA, has stated that asking about vaccination is not a disability-related inquiry, though it could turn into one if you ask follow-up questions about why the employee is not vaccinated. Asking a “yes” or “no” question about vaccination status, or requesting to see the employee’s vaccination card, does not currently appear to violate any federal laws or require proof that the inquiry is job-related.
Finally, just because employees think that something is or should be private or confidential does not mean they cannot be required to share it with their employer. Social Security numbers, birth dates, and home addresses are all pieces of information an employee may not want to advertise, but sharing is necessary and required for work. Vaccination status is similar. However, all of this information, once gathered, should not be shared by the employer with third parties, except on a need-to-know basis.
*It appears that some governors may attempt to prevent certain entities from requiring “immunity passports” (e.g., proof of vaccination) through an executive order (EO), though as of July 31, none of the EOs already issued appear to apply to private businesses and their employees. Also note that if there is a law in place which prevents treating vaccinated and unvaccinated employees differently (like in Montana), you may be able to ask, but not take any action based on the response.
Should we keep a record of who is Covid Vaccinated or make copies of vaccination cards? If we do, how long should we keep that information?
If you are asking about vaccination status, you will want to keep some kind of record (so you do not have to ask multiple times), but how you do this is up to you, unless state or local law has imposed specific recordkeeping requirements. You may want to keep something simple like a spreadsheet with the employee’s name and a simple “yes” or “no” in the vaccination column. If you would prefer to make a copy of their vaccination card, that should be kept with other employee medical information, separate from their personnel file. Per OSHA, these records should be kept for 30 years.
If we keep a record of who is vaccinated, can we share it with managers who will be required to enforce policies based on that information, such as masking and social distancing?
Yes. We recommend not sharing this information any more widely than necessary. While anonymized information is okay to share (e.g., “80% of our employees are vaccinated”), each employee’s vaccination status should be treated as confidential, even if the fact that they are wearing a mask to work seems to reveal their status publicly. Obviously, managers will need this information if they are expected to enforce vaccination-dependent policies, and employers should train them on how they should be enforcing the policies and how and when to escalate issues to HR or a higher level of management.
The laws and regulations which relate to vaccinations are complex and changing. You must always take into account federal, state and any local requirements which affect your business and your employees. We recommend speaking with your legal counsel as necessary to make sure you are in compliance with laws and regulations which apply to your situation.
This post is provided by the HR Pros at the HR Support Center and Corporate Payroll Services. It is for information purposes only and is not to be considered legal advice. When you need essential information on human resources issues, from benefits, hiring, and management, to culture, technology and regulations, HR Support Center is a resource on which you can rely. To learn more, visit www.cpsgo.com/hr-support-services/ or contact us at 770-446-7289 x2102.
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Corporate Payroll Services is one of the largest independent payroll processing companies in the U.S. specializing in payroll services, workers compensation insurance, employee benefits, retirement plans and more since 1991. We currently serve over 6,000 businesses with employees throughout the United States, Puerto Rico, and the U.S. Virgin Islands.