Can Employers Ask Employees About Covid
May 26, 2021HIPAA guideHIPAA Articles0
In the United States, mask mandates are starting to be lifted and people who have been fully vaccinated against COVID-19 are now not required to wear a mask, so can employers ask employees about COVID-19 vaccinations and their current vaccine status before allowing them back to the workplace or to work without a facemask, or would that constitute a HIPAA violation?
There has been considerable confusion about HIPAA and COVID-19 vaccinations and how the Rules of the Health Insurance Portability and Accountability Act apply in such situations. Even in government, not everyone appears to be aware of when the HIPAA Rules apply and to whom.
Recently, in defiance of House Rules, several GOP members refused to wear masks on the House floor even though they had not been fully vaccinated, and Rep. Marjorie Taylor Greene claimed that asking about her COVID-19 vaccine status was a HIPAA violation, showing a lack of understanding about HIPAA and to whom the legislation applies.
Employers are not prohibited from asking their employees if they have been vaccinated against COVID-19 and there are no federal laws that prohibit an employer or business from asking for proof of vaccination status. If an employer asks an employee about their vaccine status, the employee can refuse to answer, but there could well be consequences.
Does An Employee Have To Answer
No, employees do not have to answer or prove their vaccination status. However, if the role is required to be performed by a vaccinated employee, employers can assume a worker has not had the vaccine if they refuse to disclose.
In that case, an employer must inform the worker of that assumption and the possible consequences of not disclosing or being vaccinated. Under a government health order made earlier this year, its compulsory for border and MIQ workers to be vaccinated against COVID-19. That includes private and public sector workers involved in MIQ, port workers, those handling items from ships and aircrafts, as well as anyone who has contact with the workers covered by the order, such as their household contacts.
The deadline for MIQ workers has already passed. For wider border workers, all government employees must have had their first dose by 26 August 2021, while privately employed border workers must have had their first dose by 30 September 2021. After this time, employees will not be allowed to continue working in border roles.
Under the order, employees must provide their vaccination status to their employers to enable the business to comply with its legal requirements.
Can Employers Share Workers Vaccination Information
Co-workers and other visitors to the business might be concerned about their safety and ask whether all or specific workers on shift have been vaccinated.
Employers do not have the right to disclose their workers personal health information as it is private, and they have a duty to protect the confidentiality of workers medical records. This sensitive information may only be shared with others where it pertains to the employers duty to accommodate their employee, said Tiwari.
To assure co-workers and visitors of their safety, employers can confirm that the employee in question has been screened according to health and safety guidelines and is able to work.
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Make Vaccination Policies Consistent And Flexible
Even before the pandemic, creating consistent and mindful workplace policies was challenging. The CDCs recent guidance highlight just how difficult it is to create a consistent workplace policy when science is unpredictable and governmental regulation shifts without warning. Even other Federal agencies, such as OSHA, have yet to catch up. And employers of course must comply with rapidly changing state and local regulations for multi-jurisdictional employers, the regulatory framework for returning to the office will be an onerous task. Under the circumstances, employers should be cautious about implementing a vaccinated only policy and if they wish to adopt such a policy, they should carefully consider the most appropriate method to ask for vaccine certification and design their workplace that allows both vaccinated and unvaccinated workers to succeed. Whether or not a vaccination policy is implemented, the consequences to the workforce, both from a morale and legal basis, are significant. Further regulatory guidance will be welcome.
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“HIPAA governs doctors, hospitals, companies like that,” said Matthew Kugler, associate professor of law at Northwestern University. “If your restaurant says, ‘Hey, show me your medical record,’ that’s something they can say. You don’t have to say ‘yes,’ like you can be like, ‘No, screw you, I’ll go elsewhere.’ But it isn’t a HIPAA problem for them to ask to see it. It’s only a HIPAA problem if they break into your doctor’s office and steal it.”
So far, many big box stores are relying on an honor system for customers, asking that those who are unvaccinated continue masking, but some businesses are requiring those who wish to go maskless to show proof of vaccination.
“In general, people are required to make reasonable accommodations for things,” Kugler said. “So, that is why if you show up at a store and say, ‘I want to go in,’ and they say, ‘Are you vaccinated?’ and you say, ‘No,’ they’re like, ‘Oh here’s your mask ‘ – that’s a reasonable accommodation. I have difficulty seeing how asking someone to wear a mask would give grounds for a lawsuit.”
The rules are similar when it comes to employers, but certain issues could arise when it comes to the Americans With Disabilities Act and anti-religious discrimination laws, Kugler said.
According to December guidance from the Equal Employment Opportunity Commission, asking an employee to show proof of vaccination would not violate the ADA. Asking for reasons why someone isn’t vaccinated could pose a problem, however.
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If An Individual Discloses Their Vaccination Status Voluntarily Do They Forgo Hipaa Protections
No. If an individual voluntarily discloses their vaccination status to a HIPAA Covered Entity or Business Associate, the information they have provided is still protected under the HIPAA Security and privacy Rules. If an individual voluntarily discloses their vaccination status to an entity not covered by HIPAA, the disclosure is not subject to HIPAA Rules.
Vaccine Status As Gatekeeping To Workplace Benefits
Vaccine-certified employees, while enjoying a mask-free workplace existence, create other challenges, and employers need to consider the legal and other consequences for creating workplace policies that provide certain benefits to vaccinated individuals, but necessarily impacts others who cannot benefit from those policies.
Employers must consider the impact of limiting workplace areas to vaccinated-only employees, such as kitchens, rest areas and other communal areas. Cordoning off workplace areas for the vaccinated-only or forcing unvaccinated workers to work in designated areas could potentially lead to other issues, as would providing badges advertising the wearers vaccination status to everyone in the workplace. While vaccine status might justify a change in workplace protocol , the vaccinated employees who are permitted to remove their masks and gather in groups may be provided with employment benefits unshared by individuals who cannot be vaccinated, including for medical reasons or who have legitimate religious objections .
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Do Employees Have To Be Paid For The Time To Get Vaccinated Against Covid
Where an employer can require an employee to be vaccinated against coronavirus , the employer should cover the employees travel costs and give the employee time off work without loss of pay if the appointment is during work hours.
Employers should consider any applicable awards, agreements, employment contracts or workplace policies, in case they include rules about these types of issues.
Even where an employer doesnt require their employees to be vaccinated against coronavirus, they can still discuss work adjustments, leave arrangements or incentives with their employees to support them getting vaccinated. These arrangements could include:
- requesting and taking leave
- starting work later or finishing early
- working from home
- providing paid time off for their employees to get vaccinated against COVID-19.
Is Asking An Employee If Theyre Vaccinated A Hipaa Violation What Employers Need To Know
Insights
10.19.21
Are you fully vaccinated? This seems to have become a million-dollar question that employers want to pose to their workers, but confusion abounds regarding the legal contours of this deceptively dangerous question. Many employers continue to wonder about the legal implications of asking an employees vaccination status. While the EEOC has confirmed that you can lawfully ask employees their vaccination status without violating federal anti-discrimination laws , what about other privacy laws? Specifically, what about the often-misunderstood HIPAA, seemingly cited by anyone who disagrees with any sort of COVID-19 safety protocols? This Insight will untangle the myths from reality and provide employers with practical and legally correct guidance on this subject.
What is HIPAA?
HIPAA has unfortunately entered popular culture in recent times thanks to misguided individuals believing the law somehow creates a magic shield exempting them from complying with many pandemic-related requirements. Most recently, many employees have incorrectly cited HIPPA as grounds for withholding their vaccine status from their employers. But what is HIPAA, and does it really prevent you from asking employees and workplace visitors about whether they have been vaccinated against COVID-19?
Who Does HIPAA Apply to?
Perhaps the most common misconception about HIPAA is that it applies to all businesses and employers. It does not. The Privacy Rule governs only covered entities:
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Are Employees Required To Disclose Their Vaccination Status
There is currently no legislation requiring anyone to get vaccinated
Requiring too much personal health information could result in a breach of privacy, says Puneet Tiwari, legal counsel at Peninsula Canada.
Now that workers across Canada are receiving vaccines against COVID-19, some might be wondering how to approach this subject in their workplace.
Getting the vaccine is a personal health decision, so do workers have to disclose this information to their employer?
There is currently no legislation requiring workers to notify their employers when they have received the vaccine, saidPuneet Tiwari, legal counsel at HR consulting firm Peninsula Canada. However, providing your employer with this information can be helpful to them in making health and safety decisions for the workplace.
If Ive Been Vaccinated Against The Coronavirus Would It Be Appropriate To Let A Potential Employer Know That To Make Me A More Desirable Job Candidate
Morally speaking, absolutely.
In fact, Art Caplan, a professor of bioethics and head of the division of medical ethics at New York University School of Medicine, thinks the vaccine will become a ticket to hiring.
Some businesses are going to be able to make a convincing ethical case that you better be vaccinated to protect your co-workers and protect your customers, he explained. I think it will become pretty routine.
Sharing vaccination status with an employer is also legal.
Some candidates may even think it makes sense to offer that information when applying for certain jobs, particularly ones that involve significant travel, sales or interacting with the public, said Dan Kadish, a senior associate at Morgan Lewis in New York.
Its what a potential employer does with that information that matters.
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Can A Business Ask For Proof Of Vaccination
Subject to state laws, businesses can ask for customers to demonstrate proof of vaccination, but due to laws such as ADA cannot flatly refuse to provide a service to the customer if they cannot prove their vaccination status. Instead, if a customer has not been vaccinated or refuses to disclose their vaccination status, businesses can require the customer to wear a mask or can organize an outside delivery of their purchase. If the customer refuses to agree to the compromise, businesses can then refuse to provide a service on health and safety grounds.
Could The Legality Of This Change Depending On The State
It most certainly can and we think most likely will, Kadish, the attorney at Morgan Lewis, said.
Currently across the country, there are dozens of different state bills pending that would have something to do with a mandatory vaccine or prohibition on mandatory vaccine, Kadish added.
There is legislation pending in a handful of states that addresses vaccine mandates and employment practices concerning vaccination. And once law, state legislation will supersede federal guidance on the matter.
Kadish said employers need to be aware of the rules in their states, especially in big states such as California, Illinois and New York, and locations where employers have a large number of employees.
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Hipaa And Proof Of Vaccine Status
Vaccination information is classed as PHI and is covered by the HIPAA Rules. However, HIPAA only applies to HIPAA-covered entities healthcare providers, health plans, and healthcare clearinghouses and their business associates. If an employer asks an employee to provide proof that they have been vaccinated in order to allow that individual to work without wearing a facemask, that is not a HIPAA violation as HIPAA does not apply to most employers.
It would not be a HIPAA violation for an employer to ask an employees healthcare provider for proof of vaccination. It would however be a HIPAA violation for the employees healthcare provider to disclose that information to the employer unless the individual had provided authorization to do so. If an employer is running their own vaccination program and an employee chooses to have their vaccine privately, that individual may have to authorize their healthcare provider to disclose certain information about their vaccine to their employer as proof that they have been vaccinated.
Asking about vaccine status would not violate HIPAA but it is possible that other laws could be violated. For instance, requiring employees to disclose additional health information such as the reason why they are not vaccinated could potentially violate federal laws. Furthermore, several states have passed laws or are considering laws that prohibit employers in the public sector from asking employees about their vaccine status.
Can An Employment Offer Be Made Conditional On A New Hire Being Vaccinated For Covid
Since the vaccine is widely available to the public an employer can likely require this, Atlantic law firm McInnes Cooper said in a blog, in the same way employers can require pre-employment drug and alcohol testing and medical and criminal record clearances in certain circumstances. But the firm recommends that COVID-19 vaccination, and proof of it, as a condition of the employment offer and part of the onboarding process be made clear in advance to prospective hires. The requirement should be part of a broader vaccination policy reflecting the employers vaccination standard in the workplace, and not applied only as part of a new hiring process.
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What Is Hipaa Law Regarding Vaccine Passports
HIPAA law regarding vaccine passports is the same as any other proof of vaccination. Only HIPAA Covered Entities and their Business Associates are required to comply with HIPAA. Therefore, if an individual is asked for a vaccine passport by their health plan provider, the health plan provider is subject to HIPAA law. However, if an amusement park operator requests to see a vaccine passport, they are not a HIPAA Covered Entity or Business Associate and therefore not subject to HIPAA law.
Can You Have Different Rules For Vaccinated And Unvaccinated Employees
You can. Some employees impose onerous obligations on the unvaccinated, such as extensive personal protective equipment, social distancing, and regular testing at their own expense. Some clients have the unvaccinated attend separate buildings. Is that discriminatory? Yes. Is it illegal discrimination? No.
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Can An Employee Refuse To Work Among The Unvaccinated
As long as the workplace is safe, i.e. complies with public health guidelines, an employee has no right to refuse to work among the unvaccinated. If they believe the workplace is objectively unsafe, the remedy across Canada is to ask an Occupational Health and Safety Inspector to attend the workplace and either deem it to be safe or not, or require specified modifications. Once those modifications are made or if it is ruled safe, an employee refusing to work can be fired for cause.
Key Questions About The Covid Vaccination
Emma Vennesson and Charlotte Marshall answer common queries employees have about the vaccine rollout and returning to the workplace
Can my employer ask me if I have had the Covid-19 vaccine?
Your employer can ask if you have had the Covid-19 vaccine. However, there may be data protection implications of doing so since. Holding information on whether or not an employee has had the vaccine is likely to be considered a special category under data protection law. This means that the data is sensitive and your employer must put in place additional safeguards to protect it.
Can my employer request or force me to have the coronavirus vaccine? Is this similar to requesting employees get tested?
Your employer can make it a workplace requirement that staff should be vaccinated, provided that this is reasonable in all the circumstances. There may be some settings, such as healthcare, where a requirement for employees to have the vaccine is reasonable and necessary. However, the majority of employers may find it difficult to justify such a requirement, particularly where other safety measures, such as social distancing and the wearing of face coverings, are available.
Is there a health and safety obligation? If an employee refuses to be vaccinated, does this pose an issue for other employees in the office?
If vaccinations cannot be made compulsory, what else can employers do?
Are there any discrimination risks around the vaccine?
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