Saturday, September 30, 2023

Is It Legal To Ask If Someone Is Vaccinated

Could This Timeframe Change

You Ask. We Answer. | Is it legal to ask if someone is vaccinated or make them show prove

There are calls for the CDC to issue a new minimum isolation period for those who have been vaccinated and those who have been boosted.

The current rules were designed for people who are unvaccinated and health care experts are questioning the wisdom of keeping in a 10-day rule that would impact the ability of the health care system to treat the hospitalized.

It could also adversely impact the economy and people’s incomes if employees who cannot work remotely are forced to isolate for the full 10 days.

The Omicron variant has emerged as the most dominant strain in the U.S, accounting for almost three quarters of new cases last week.

While believed to be more contagious, early signs suggest that the variant is not more severe than other strains and most cases appear to be mild among those fully vaccinated.

The U.S.’s top infectious diseases expert Dr. Anthony Fauci has given the strongest suggestion yet that the current CDC guidance might take into account how the disease has developed and people’s different vaccination statuses.

Fauci told CNN “no decisions” had been made but that there was a discussion on whether to let infected health care workers without symptoms return to work sooner.

Fauci said health care workers who tested positive might be able to end their isolation period sooner if they don’t have symptoms and wear N-95 masks and other personal protective equipment.

Many Workers Are Worried About Having Conversations About Vaccines On The Job

by Gwen Moran, AARP, August 30, 2021

En español | Whether you’re already back in the office or preparing to return, you may have questions about the safety of your workspace. And a fair amount of that concern may have to do with how many people in your office have been vaccinated. According to MassMutual’s Consumer Spending & Saving Index, which measured attitudes and behaviors about returning to the office, nearly one-fourth of U.S. office workers are stressed about colleagues who haven’t been vaccinated. And 27 percent worry about their offices not adhering to COVID-19 safety guidelines.

While it may be possible to simply come out and ask coworkers about their status, it’s a good idea to think about a few things before doing so, says industrial organizational psychologist Adam Bandelli, managing director of New York City-based consulting firm Bandelli & Associates and author of What Every Leader Needs. It’s important for everyone’s safety and well-being to know what’s going on in their workplace, Bandelli says. But determining how to get the information you need to feel comfortable while not alienating others in the office can be tricky.

As you face new expectations about how you should interact with coworkers while also considering your own safety concerns, here are some tips to navigate this tricky situation.

Employee Privacy And Vaccination Disclosure

Do employers have a right to reveal which workers have been vaccinated?

Recently, I had to arrange for service in my home, and I was reassured when the dispatcher assured me that the employee we send will be fully vaccinated. Then, being an employment lawyer, I started to think about the legal implications.

  • Didnt she just share personal information about an employee with me?
  • Had the employees consented to such disclosure?
  • If not, wasnt that a breach of their privacy rights?

As readers know, there are a plethora of issues relating to vaccination of employees. We have discussed, and will continue to discuss, whether employers can require that employees be vaccinated.

Along with that issue is the question of whether employers can ask whether workers have been vaccinated and, to take that a step further, require proof of vaccination.

On a related note, but with different legal implications, we have also discussed whether vaccination can be a hiring criteria.

We know that in many factual scenarios, we have to address the balancing of various rights and interests. For example, sometimes we must balance safety concerns with human rights. Privacy rights also are often thrown into the mix.

But does it breach the privacy rights of the employee?

There is no doubt that whether or not someone has been vaccinated is personal information. If a business tells a customer “Don’t worry, the service person that we send has been vaccinated,” they are disclosing that personal information.

Read Also: Cvs Tdap

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?

Don’t Require People To Put Their Vaccine Status On Their Rsum

As new J& J vaccine arrives in Arizona, health leaders say ...

Anything medical does not belong on a candidate’s résumé, so don’t expect that vaccinated candidates will note it on their résumé or their LinkedIn profile. You can ask, as Bischoff and Schwartz advised, but don’t require them to be up front.

Likewise, don’t reject someone for adding that information. Even though medical information doesn’t belong on a résumé, it’s understandable that someone would list an environment where companies seek vaccinated employees,

Overall, you may find it difficult to get enough candidates, so now is not the time to be super picky. You can train just about anyone to do just about anything, but convincing an unwilling person to be vaccinated may be impossible. It’s a candidate’s market out there, so be up front about vaccines and plan to train.

Get Inc.s top posts straight to your inbox. and youll receive Todays Must Reads before each day is done.

Don’t Miss: Where To Get Tdap Vaccine Cvs

Compliance With Other Federal State And International Laws

The Equal Employment Opportunity Commission recently issued advice for employers to help avoid any potential violations of anti-discrimination laws, such as the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act . The EEOC confirmed theres no indication that theres any federal law that would be violated by the employer asking this question.

While employers can ask the question about whether an employee has been vaccinated, care should be taken when asking follow-up questions, such as why an employee has not been vaccinated. There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. 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.

However, continued the EEOC 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 same advice can also relate to state laws such as California´s Privacy Rights Act and to international privacy laws such as the EU´s General Data Protection Regulation .

Could An Employee Be Terminated For Refusing To Have A Covid

Being terminated for not having the vaccine is a possibility in some states, but employees could potentially take legal action against their employer for wrongful termination. The Food and Drug Administration fast-tracked the approval process for COVID-19 vaccines through an Emergency Use Authorization , otherwise approval of live-saving vaccines would have been delayed.

The EUA requires a drug or vaccine to be accompanied with information for individuals about their right to refuse and to be told about the consequences of such a refusal. The wording of the EUA in this case could be interpreted in different ways, and wrongful termination lawsuits based on the refusal to be vaccinated are a possibility although yet to be tested in the courts.

There is also an issue that could arise if a substantial portion of the workforce refuses the vaccine. An employer would then have to decide whether to terminate all of those employees or none at all. If only certain employees were to be terminated for refusing the vaccine on non-medical or non-religious ground, there could well be valid claims that individuals have been discriminated against.

Also Check: Cvs Tdap Vaccine Schedule

Talking To Employees About The Covid

If there are any practical barriers to accessing vaccination, employers should help address these. Some employees may have individual health concerns or other reasons for needing support.

Before any vaccine is approved for use in New Zealand, it must meet international standards and local requirements for quality, safety and efficacy.

This does not mean employers need to debate or provide detailed answers to questions about the vaccination, its safety, and/or its effectiveness as a control against infection/transmission/severe illness.

Where detailed medical questions are raised, an employer can rely upon expert public health advice for those matters and can point employees who are concerned to that information.

Employers should consider providing an employee with access to someone who can deliver this advice in a way that is readily understood, if that was reasonable and practicable in the circumstances. This could include a medical practitioner.

Other Reasons For Requiring Vaccination Of Workers

Is it legal to ask someone if they’re vaccinated?

There may be situations where a third party imposes a condition on its engagement with an employer, for example to only deal with the employers workers if they are vaccinated, or to only allow vaccinated workers onto its premises. This may arise where an employers workers provide services to a third party.

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.

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 its workers who are assigned to engage with the third party are vaccinated.

Read Also: Does Cvs Pharmacy Give Tdap Vaccine

Is My Employer Required To Tell Me Why They Are Requesting My Vaccination Status Information And What They Are Going To Do With My Information

If your employer requests your consent to collect vaccination status information, they are required to be transparent about why the information is being collected, and how it will be used, in line with APP 1.

Your employer must also take reasonable steps to notify you of the matters set out in APP 5. These include:

  • the purpose of collection

More Legal Challenges Ahead

As was the case when the mandates were announced, there will be legal challenges to tonights ruling.

AP reported that, Arkansas Attorney General Leslie Rutledge, a Republican, said she would ask the U.S. Supreme Court to block the order. The Job Creators Network, a conservative advocacy group, said Friday it had already asked the Supreme Court to block the mandate.

The Sixth Circuits decision is extremely disappointing for Arkansans because it will force them to get the shot or lose their jobs, Rutledge said.

South Carolina Attorney General Alan Wilson, who also is chairman of the Republican Attorneys General Association, said in a Twitter message Friday that he was confident the mandate could be stopped.

You May Like: Does Cvs Do Tdap Shots

What If Someone Asks You

If you’re the one who received a dose earlier than others and someone asks how you qualified sooner, Kosik says, you don’t need to feel obligated to explain.

“You don’t need to get into details because, you know, you can’t make everybody happy. People are always going to criticize.”

But she says, “you don’t want to appear secretive.” She suggests answering in a general way: “It’s work related” or “It’s actually health related.”

Does Hipaa Apply To Covid Vaccines


Only organizations that are HIPAA Covered Entities or Business Associates are subject to the HIPAA regulations with regards to how information about vaccination statuses is collected, maintained, used, and disclosed. Organizations not covered by HIPAA may be subject to other federal, state, or international laws.

You May Like: Can I Get Tdap At Cvs

B Confidentiality Of Medical Information

With limited exceptions, the ADA requires employers to keep confidential any medical information they learn about any applicant or employee. Medical information includes not only a diagnosis or treatments, but also the fact that an individual has requested or is receiving a reasonable accommodation.

B.1. May an employer store in existing medical files information it obtains related to COVID-19, including the results of taking an employee’s temperature or the employee’s self-identification as having this disease, or must the employer create a new medical file system solely for this information?

The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee’s statement that the employee has the disease or suspects so, or the employer’s notes or other documentation from questioning an employee about symptoms. For information on confidentiality and COVID-19 vaccinations, see K.4.

B.2. If an employer requires all employees to have a daily temperature check before entering the workplace, may the employer maintain a log of the results?

Yes. The employer needs to maintain the confidentiality of this information.

B.3. May an employer disclose the name of an employee to a public health agency when it learns that the employee has COVID-19?


Employer Incentives For Covid

ADA: Employer Incentives for Voluntary COVID-19 Vaccinations

K.16. Does the ADA limit the value of the incentive employers may offer to employees for voluntarily receiving a COVID-19 vaccination from a health care provider that is not affiliated with their employer ?

No. The ADA does not limit the incentives an employer may offer to encourage employees to voluntarily receive a COVID-19 vaccination, or to provide confirmation of vaccination, if the health care provider administering a COVID-19 vaccine is not the employer or its agent. By contrast, if an employer offers an incentive to employees to voluntarily receive a vaccination administered by the employer or its agent, the ADAs rules on disability-related inquiries apply and the value of the incentive may not be so substantial as to be coercive. See K.17.

As noted in K 4., the employer is required to keep vaccination information confidential under the ADA.

K.17. Under the ADA, are there limits on the value of the incentive employers may offer to employees for voluntarily receiving a COVID-19 vaccination administered by the employer or its agent?

GINA: Employer Incentives for Voluntary COVID-19 Vaccinations

K.18. Does GINA limit the value of the incentive employers may offer employees if employees or their family members get a COVID-19 vaccination from a health care provider that is not affiliated with the employer ?

Read Also: Cvs Tdap Shot

What If Someone Tells You They Refuse To Get Vaccinated

This can be one of the most difficult situations to deal with whether with family or friends.

In Canada, vaccine uptake is quite strong. According to the most recent survey by the Angus Reid Institute, 71 per cent of Canadians have either had their first dose of a COVID-19 vaccine or would like to be inoculated as soon as possible.

But in some parts of the country, there is greater hesitancy. In Alberta, for example, about 30 per cent of people say they will not be vaccinated or are unsure about it roughly double the national average of 16 per cent.

Viswanath says if someone is firmly opposed to the vaccine, it’s probably not worth trying to convince them. But if they are simply hesitant about the COVID-19 shot, he advises patience and openness. Listen to them and find out what their concern is.

“They may have concerns that you try to address as best as you can,” he said.

“You just have to keep engaging them. I really, really strongly believe this,” he said. “This is a time when you can’t turn your back away from people…. They will be receptive at some point.”

Experts Say Hipaa Does Not Cover Vaccination Questions

Is it legal to ask for proof of vaccination? | KVUE

USA TODAY debunked a similar version of this claim last summer, when mask opponents encouraged others to claim HIPAA allowed them to avoid mask mandates.

Alan Meisel, a professor of law and bioethics at the University of Pittsburgh, told USA TODAY at the time that HIPAAs rules apply only to sharing information between “covered entities.” The U.S. Department of Health and Human Services describes covered entities as health plans, health care clearinghouses, and those health care providers that conduct certain health care transactions electronically.

Meisel said the claim that HIPAA protected people from being asked about their vaccine status is utter nonsense.

Fact check:COVID-19 vaccines won’t make the common cold or flu ‘extremely lethal’

It in no way prohibits business owners and other individuals from asking people if they have been vaccinated, he wrote in an email to USA TODAY. In fact, it doesnt even prohibit healthcare entities mentioned above from asking people if they have been vaccinated.

Georgetown University law professor Lawrence Gostin agreed, saying, “Non-health care businesses are not subject to HIPAA.”

While businesses and individuals maintain the right to ask others for vaccination status, that does not mean anyone has to provide that information.

In short, HIPAA doesn’t have any effect outside a health care setting.

You May Like: Cost Of Shingles Vaccine At Cvs

Popular Articles
Related news