Can I Ask My Employees If They Have Been Vaccinated?

The short answer is: Yes, however be careful what you ask for!  At this stage of the COVID-19 pandemic, vaccinations are at the front of everyone’s mind. Now, with the mass rollout of vaccinations across the country, employers’ main questions have been: i) Can we mandate vaccinations for our workforce or, alternatively, ii) can we ask employees whether they have been vaccinated or not (and to show proof of vaccination)?  

Whether you’ve chosen to mandate COVID-19 vaccinations or not, you still may be interested in asking your employees to show proof of their vaccination status.  This simple question comes with its own set of risks. The U.S. Equal Employment Opportunity Commission (EEOC) has given additional guidance in this area in Section K.3 of “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”   

There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related, according to the U.S. Equal Employment Opportunity Commission (EEOC).

So essentially, the EEOC said you can ask about vaccination status,  but employers should refrain from asking follow-up questions about why an employee did not receive a vaccination. Such inquiries may elicit disability-related information, according to the EEOC, and would be subject to the ADA’s requirement that questions be “job-related and consistent with business necessity.” 

If employers ask workers to provide vaccination proof from a pharmacy or health care provider, they “may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA,” the EEOC stated.

The risk are your follow up questions

The rub and risk come if you ask follow-up questions that may elicit whether the employee may have a disability.  Simply following-up with “why do you not have the vaccination yet?” could be treading into that risky territory that touches on whether an employee’s disability is the reason why the employee has not been vaccinated. 

If you find yourself in that territory, you will have to evaluate the employee’s response within the framework of the Americans with Disabilities Act (ADA) (or Title VII, if the employee’s response implicates religious beliefs) requirement to justify proof of vaccination being “job-related and consistent with business necessity.”  This is the same analysis an employer must undertake when mandating vaccinations, and it can be a tedious and high standard to meet. 

The same is true of follow-up questions that may elicit genetic information (e.g., I cannot get the vaccination due to my family’s history of being immuno-compromised).  (See Sections K.8 and K.9 of the EEOC guidance described above).  Once again, simply asking for vaccination proof does not run afoul of the Genetic Information Nondiscrimination Act (GINA) so long as you stop there in your inquiries.

Practice Tips:

• Again, be careful what you ask for.  It’s one thing to ask the employee whether they were vaccinated and to show proof, and it’s another to ask why they were not vaccinated. Once you start eliciting disability, religious or genetic information with follow-up questions, you are placing your company at risk of knowing more information than you may have bargained for.
• You need to ask yourself, first, why do I want to know information regarding why my employees have been vaccinated or not?  What are you going to do with this information?  Having a need and plan for this information will help ensure you have a business justification for why this information is necessary. If you don’t have a plan or a need, you may determine that knowing this information is not really necessary after all.
• When asking employees to show proof of vaccination, it is good to remind them that you do not want them to include any other medical information that may be listed on their vaccination-related documents.
• Are you violating HIPAA by asking Vaccine Status?  No, there has been an enormous amount of misunderstanding what constitutes a HIPAA violation.   HIPAA  prohibits certain health care entities from revealing certain health information about patients. There would only be a HIPAA violation if covered entities—who are required to comply with its privacy standards and rules—disclose vaccination status without authorization.
• If you ask and retain copies of documents, you must treat this information as a confidential medical record

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Free Webinar: How to Comply with the Latest COVID-19 Regulations

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On August 5th, 2021, Highflyer hosted a webinar on the CDC guidelines and state guidance regarding how businesses should go about managing employees in the workplace in light of the COVID-19 vaccination progress across the country. Employers have many issues to consider. In this session of our 2021 COVID-19 webinar series, we will discuss current regulations and how to be prepared for future mandates.

Topics we covered:

• COVID-19 vaccines
• What can we ask
• Should we mandate
• The latest Department of Labor regulations pertaining to COVID-19
• Complying with the ADA
• HIPAA issues
• FFCRA update
• What employers are doing to comply with the latest COVID-19 regulations
• Should we change policy ahead of State/Federal Mandates
• What are the latest CDC guidelines on Quarantine/Isolation times?{{cta(‘ddccd814-4aa1-446b-b770-1dedb809f9ed’)}}