F Furloughs And Layoffs
F.1. Under the EEOC’s laws, what waiver responsibilities apply when an employer is conducting layoffs?
Special rules apply when an employer is offering employees severance packages in exchange for a general release of all discrimination claims against the employer. More information is available in EEOC’s technical assistance document on severance agreements.
F.2. What are additional EEO considerations in planning furloughs or layoffs?
The laws enforced by the EEOC prohibit covered employers from selecting people for furlough or layoff because of that individuals race, color, religion, national origin, sex, age, disability, protected genetic information, or in retaliation for protected EEO activity.
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.
If You Have Problems With Your Proof
If the name or date of birth on your Canadian COVID-19 proof of vaccination doesnt match the information on your passport , you should:
- use the name on your passport for travel bookings
- such as for plane tickets and hotels
If you need to travel before you update the information on your proof of vaccination, you may have problems such as delays at border crossings.
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Can An Employee Still Lose Their Job If They Are Unvaccinated And The Employer Requires Vaccination For Their Job
Where an employment process is underway because an employee is not vaccinated, it is recommended that the employer take a cautious approach and pause that process .
Public health advice on when a business could reasonably require vaccination to perform work has been updated. Employers should undertake an updated work health and safety risk assessment before making any decisions.
The law says before giving a termination notice, the employer must ensure that all other reasonable alternatives that would not lead to termination of the employees employment agreement have been exhausted.
Examples of alternatives include agreeing to pause a process to review updated guidance and public health advice and consider whether public health controls other than vaccination are appropriate.
Employers may have employer vaccination requirements, where they need one to ensure that their employees can access third party sites.
Can Employers Ask For Proof Of Covid
Doesnt that violate HIPAA? This is a question we hear regularly from employers, businesses and individuals who are concerned that asking someone for their COVID-19 vaccination status could raise issues under the Health Insurance Portability and Accountability Act Privacy Rule. The answer is no it is not a problem to ask and it is not a problem to require disclosure of COVID-19 vaccinated status. This is fairly clear on the face of the regulations themselves. While vaccination information is classified as health information that is generally covered by the HIPAA Privacy Rule, HIPAA generally only provides protections with respect to disclosures by covered entities and their business associates. HIPAA therefore does not apply to most employers, and does not apply when an individual employee discloses to their employer information about the employees own health status, including COVID-19 vaccination status.
The Department of Health and Human Services has recently provided further reassurance regarding the inapplicability of HIPAA with respect to certain information about vaccination status in the form of lengthy FAQs posted to their website on September 30, 2021.
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How Should An Employer Handle An Objecting Employee
If an employee objects to receiving a vaccine, the employer should first consider whether a reasonable accommodation can be provided which would allow the employee to continue working.
This may take the form of letting the employee work from home until such time as the employer deems it safe for the employee to return. Regardless of what final decision is reached, the employer should work with the employee to determine what a reasonable accommodation might be.¹
Can An Employer Require Workers To Disclose Their Vaccination Status
A PHO order may require select employers in certain sectors to collect vaccination status from their workers, such as for those who work in health care settings. However for other employers, checking vaccination status of their workers is not currently a public health requirement or a WorkSafeBC requirement. Similar to mandatory vaccination policies, employers should seek legal advice when deciding to implement such policies.
Employers may refer to A human rights approach to proof of vaccination during the COVID-19 pandemic, published by B.C.s Office of the Human Rights Commissioner, for advice on how employers can approach vaccination status policies.
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First Alert: Heat Wave Continues In Boston
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.
“Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry,” the commission states. “However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be ‘job-related and consistent with business necessity.'”
The ADA, however, allows for an employer to have a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.
“If a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a ‘significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation,'” the guidance from EEOC reads.
Why Are Some States Introducing Their Own Laws About Proof Of Vaccination
Some states have taken the view that, because COVID vaccines do not guarantee 100% protection against the virus, proof of vaccination only demonstrates an individual is less likely to contract and transmit the virus. It is also the case nobody knows for sure how long vaccine-induced immunity lasts. Therefore, it is possible an individual with a vaccine passport can still present a risk of infection.
Steve Alder has many years of experience as a journalist, and comes from a background in market research. He is a specialist on legal and regulatory affairs, and has several years of experience writing about HIPAA. Steve holds a B.Sc. from the University of Liverpool.
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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:
If A Health Care Provider Declines To Assess Or Treat An Unvaccinated Worker What Actions Are Taken To Assist The Worker
WorkSafeBC expects that these types of situations will rarely happen as most professional governing bodies do not support their members declining to provide services because a patient is unvaccinated. If these situations occur, WorkSafeBC will investigate the circumstance with the provider to ensure they have an accurate understanding of the situation. If a provider declines to assess or treat an unvaccinated injured worker, alternate service/treatment providers or options for the worker will be explored.
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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.
Making Vaccination A Condition Of New Employment
An employer who wishes to may make vaccination a condition of employment for a new employee or an existing employee moving to a new role may do so. This should be a genuine requirement for a role and the employer should clear what the basis for the condition is . Employers should also consider whether there are alternatives to requiring vaccination as a condition of employment.
Such a condition must not breach any legal requirements, including the Human Rights Act.
Where an employer is considering introducing this requirement, we strongly recommend they get specialist advice first.
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Other Reasons For Requiring Vaccination Of Workers
There may be situations where a third party imposes a condition on an employer, for example only allowing vaccinated workers onto its premises. This may arise where an employers workers provide services to a third party, for example onsite security or catering services.
As long as these vaccination conditions are not unlawful, or in breach of any agreements between the parties, the employer will need to ensure its workers are vaccinated to keep doing business with the third party.
Where this situation applies, we recommend that employers engage with the third party to ensure that in imposing this requirement they are meeting their work health and safety duties to so far as is reasonably practicable, consult, co-operate with, and co-ordinate activities.
This means that an employer may need to consider which of its workers engage with the third party based on their vaccination status. An employer may also rearrange their business to ensure that only its vaccinated workers engage with the third party.
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.
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Communicate And Incentivise Covid
The Therapeutic Goods Administration has implemented arrangements to enable Australian businesses to communicate and incentivise COVID-19 vaccinations. The TGA is the Australian body that approves COVID-19 vaccines.This means that some employers may offer practical support to employees or customers to incentivise getting vaccinated against COVID-19. Examples include store vouchers, discounts or free tickets to those eligible.
Learn more about lawfully communicating with your employees about COVID-19 vaccines and what rules apply when offering rewards on the TGA website.
Check out the Department of Health’s COVID-19 vaccination business kit. The kit has resources to help spread the message of the importance of vaccination and encourage people to look for accurate information from trusted sources.
M Retaliation And Interference
The anti-retaliation protections discussed here only apply to the exercise of rights under the federal equal employment opportunity laws. Information about similar protections under other federal workplace laws, such as the Family and Medical Leave Act or the Occupational Safety and Health Act, is available from the U.S. Department of Labor. Information about similar protections under the Immigration and Nationality Acts anti-discrimination provision, which prohibits some types of workplace discrimination based on citizenship status, immigration status, or national origin, and protects against retaliation for asserting those rights, is available from the Civil Rights Division of the U.S. Department of Justice.
M.1. Do job applicants and employees have protections from retaliation for exercising equal employment opportunity rights in connection with COVID-19?
Yes. Job applicants and current and former employees are protected from retaliation by employers for asserting their rights under any of the federal EEO laws. The EEO laws prohibit workplace discrimination based on race, color, sex , national origin, religion, age , disability, or genetic information. Speaking out about or exercising rights related to workplace discrimination is called protected activity.
M.2. What are some examples of employee activities that are protected from employer retaliation?
M.3. Who is protected from retaliation?
M.4. When do retaliation protections apply?
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When Accessing Services In Canada
Some services in Canada, such as restaurants and sporting events, require proof of vaccination. Its up to each province or territory to determine if proof is required to access services and, which type of proof they accept in which situations.
Some provinces and territories may issue more than 1 type of proof of vaccination:
- 1 for use within their province or territory to access services, such as restaurants, and
- another for travel and use outside the province or territory to access services
Check with the province or territory to make sure you understand which proof is required.
Example Of Information That Doesnt Match
An example of information that doesnt match could be having your name at birth on your proof of vaccination but your married name on your passport.
Follow the instructions on your provinces or territorys website to download or print a new copy.
If it was lost or stolen, it cant be used on its own by someone else. It needs to be used with another document to verify your identity.
The destination country decides whether or not to accept your proof of vaccination.
If you dont meet their entry and health requirements to enter, do not travel to this country. If you do, you may be sent back to Canada at your own expense or need to follow the quarantine and testing rules of that country.
The Government of Canada cannot assist you with making new travel arrangements if this happens.
Some countries may not be able to scan the QR code on your proof of vaccination.
If this happens, you can show the vaccination history available on the digital or paper copy of your proof of vaccination.
If there is an error in your information, contact your province or territory to correct it before your next trip.
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