QA: Can a Company Ask Employees If They Are Vaccinated and Can it be an Employment Requirement?

Back in February, we wrote an article on mandatory vaccination policies. Not a lot has changed since then, but we still get questions from employers seeking guidance on the rules for vaccine requirements for employees.

The Centers for Disease Control and Prevention (CDC) no longer requires mandatory mask-wearing or social distancing for vaccinated people. However, if state or local laws contradict the CDC, then these laws take precedence.

Asking staff about their vaccination status is vital to ensure the safety of your employees and your customers, but there are significant privacy rules to consider. An employee’s vaccination status is private health information, but it is also a determination of whether they need to wear a mask and socially distance at work.

Here are a few commonly asked questions by employers:

Can I ask my employees if they are vaccinated?
Employers are allowed to ask their employees about their vaccination status.

Is asking a violation of the Health Information Portability and Accountability Act (HIPAA)?
No, because HIPAA establishes restrictions on sharing information, not asking. The Equal Employment Opportunity Commission (EEOC) has explicitly said that employers can ask their employees about their vaccination status.

Is asking a violation of the Americans with Disabilities Act (ADA) or the Genetic Information Nondiscrimination Act (GINA)?
It can be if you aren’t careful. To avoid violating the ADA or GINA, you should limit your inquiry to only the employee’s vaccination status, avoid any follow-up questions, and inform your employees not to provide additional medical information. You should also maintain your employee’s confidentiality.

Can I ask my employee for proof of vaccination?
Yes, you can. The EEOC allows you to obtain proof of receipt of COVID-19 vaccination from your employees, and it’s likely that you can also request a copy of their vaccination card or documentation of their vaccination status.

How can I maintain my employee’s privacy?
Limit who has access to your employee’s vaccination status as much as possible. Also, limit the use of this information: only use it to determine which employees are required to wear a mask, socially distance, and quarantine after exposure to COVID-19.

Can you be fired for refusing to get vaccinated against COVID-19?

The EEOC has made clear that individuals can be required to take the vaccine as a term and condition of employment. That is subject to requests for accommodation based on medical reasons or sincerely held religious beliefs.

Can an employer require vaccination before hiring?

Employers may require that new hires be vaccinated by the first day of work, provided they accommodate those who can’t receive the vaccine for disability- or religious-based reasons,

Can an employer ask applicants if they have COVID-19 symptoms?

Yes, an employer can ask applicants if they currently have COVID-19 or COVID-19 symptoms. If the employer screens everyone who comes on its campus for COVID-19, then someone coming in for a job interview can also go through the screening process. But it is not a good idea to ask screening questions or COVID-19 status for someone who is not coming into the workplace.

If you have any questions or need advice, please contact Allan RooneyTim DavisElannie Damianos, or Abbey Docherty or call +1 212 545 8022.

 

This article is one of a series intended to de-mystify common legal issues for the non-lawyer and entrepreneur audience – they are designed to foster discussion and is by no means exhaustive. These materials are for informational purposes only. Nothing herein is intended nor should be regarded as legal advice. The distribution of this article to any person does not establish an attorney-client relationship with our firm. Rooney Nimmo assumes no liability in connection with the use of this publication. This bulletin is considered attorney advertising under the applicable rules of New York state. Rooney Nimmo UK is regulated by the Law Society of Scotland and Rooney Nimmo US by the New York rules of professional conduct. All attorneys and solicitors listed in this firm stipulate their jurisdictional limitations. Rooney Nimmo in the USA is a law firm registered as a New York State professional corporation.

 

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