As government officials and the U.S. Centers for Disease Control (CDC) continue to relax restrictions for individuals who are fully vaccinated for COVID-19, many employers are looking for guidance to determine if they can legally obtain information regarding the vaccination status of their employees.
There are many reasons that an employer may wish to maintain COVID-19 vaccination record information. Such reasons include a business’s ability to determine contract tracing protocols, the potential reduction in personal protective equipment practices among employees, return to domestic air travel for business needs, and potential impact of exposure / quarantine on the operational needs of the business. Additionally, a business may need to accommodate customer demands for vaccination status of the organization’s employees who are performing services at the customers’ facilities or encountering them.
On April 2, 2021, the U.S. Center for Disease Control issued updated guidance for fully vaccinated individuals that indicates the following:
- Fully vaccinated individuals are permitted to meet with other fully vaccinated people indoors without wearing masks or physical distancing;
- Refrain from quarantine and testing following a known exposure if asymptomatic, and;
- Return to domestic travel without quarantine requirements.
The U.S. Equal Employment Opportunity Office (EEOC) has previously indicated that employers may request employees for proof of a COVID-19 vaccination. The EEOC guidance provides that asking or requiring employees to show proof of receiving a COVID-19 vaccination is not a disability-related inquiry under the Americans with Disabilities Act (ADA). Thus, employers may request or require employees to provide proof of receiving a vaccine without implicating the business necessity test by requesting personal medical information from an employee under the ADA.
In Pennsylvania, when an individual is vaccinated against COVID-19, the vaccine provider issues them a CDC COVID-19 Vaccination Record Card as evidence of vaccination. These cards include limited information, such as name, date of birth, the date of the vaccine dose, the type of vaccine, and where the vaccine was received. This limited information is not considered medical information under current guidance from the EEOC.
Notwithstanding this guidance, there are still safeguards that an employer must take to ensure compliance with state and federal law. First, vaccination records are “health records” under the Health Insurance Portability and Accountability Act (HIPAA). Second, there are privacy requirements for medical record information that may come into play for vaccination records under Pennsylvania law.
If an organization decides to ask employees about their vaccination status, they should consider steps to minimize the employer’s compliance risk under the ADA, HIPPA and Pennsylvania privacy laws. Such steps may include:
- Only requesting a copy of the CDC Vaccination record card received by an employee during the vaccination process. Employees should be directed not to provide any other medical information as part of the requested proof of receipt of a COVID-19 vaccination. This will ensure that no other information is received by the Employer which may elicit information about a disability or medical condition.
- Directing that no additional follow-up questions be directed to the employee inquiring why an individual did not receive a vaccination.
- Once COVID-19 vaccination records are collected, the employer must ensure that the vaccination record is kept confidential and in a separate location from the employee’s personnel file. Access to COVID-19 vaccine information should be strictly limited, as any confidential employee medical information, to those individuals with a business need to know the information.
- Employers who may wish to disclose the vaccination status of their employees to customers should strongly consider obtaining written consent or permission from employees. Moreover, employers should be cognizant that any actions that distinguish vaccinated employees from those employees who are not vaccinated risks potentially claims of discrimination under the ADA depending on the circumstances and reason for the non-vaccination status.
Certain employers may find the need for employee vaccination status and records more compelling than others depending on their business type and clientele. Each private sector employer should consider the company’s individual needs and circumstances and should talk with legal counsel about its options.
Should you need legal advice or have questions regarding this topic, reach out to:
Andrew M. Rongaus | firstname.lastname@example.org.
Andy is a partner at Siana Law and chair of the firm’s COVID-19 task force. He concentrates his practice in municipal civil rights defense and employment law.
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