On January 11, 2022, the White House announced that starting on January 15, 2022, the purchase of FDA-approved, over-the-counter COVID-19 diagnostic tests will be covered by health insurance.
While you may still be wrestling with the question of whether to mandate a COVID-19 vaccine policy in your workplace, it’s important to understand all the factors that arise from maintaining a safe work environment during a pandemic. Among these is whether you plan to ask employees to disclose their vaccination status and how to do so. Let’s get into it.
Am I permitted to ask my employees about their vaccination status?
The U.S. The Equal Employment Opportunity Commission (EEOC) released COVID-19 guidelines which state that under both the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), employers are allowed to ask employees about their vaccination status.
Am I permitted to ask employees to provide proof of vaccination?
Yes. Under these same EEOC guidelines, it is legal to request and/or require that employees provide proof they have been vaccinated. However, be careful here. Employers are not permitted to ask any unnecessary questions about an employee’s health status or disabilities.
This means that if an employee has not received the vaccine, do not ask, “Why not?” because this question may bring to light information about an employee’s health status or disability—and the ADA restricts when employers may seek this type of information. Questions about health and disabilities may only be asked when they are “job related and consistent with business necessity.”
If an employee discloses that they have not received the vaccine and you wish to press further, be sure to engage an HR professional to help you navigate this tricky conversation.
How should I ask employees about vaccination status?
This may be done in a number of ways. First, decide if you will ask employees to volunteer this information (which means that only employees who are comfortable sharing will do so) or if you will require this disclosure.
Then, decide how you will collect this information. You can utilize surveys, require form completions, or request signatures on attestations. You may also require employees to bring in documentation that demonstrates vaccine status. (Just keep in mind that these are considered medical records and must be kept confidential and stored separately from an employee’s personnel file.)
Can employees ask one another about vaccination status?
No. Vaccination status is considered confidential medical information under the ADA. Even if it may be obvious and easy to detect unvaccinated employees (these may be the only employees in the workplace wearing masks, for example), you should never publicly disclose vaccination status.
Be sure to limit how you share this information outside of your HR team and only do so when absolutely necessary and in a limited way.
However, anonymized information is okay to share (e.g., “80% of our employees are vaccinated”) and may come in handy when making decisions about mask policies or social distancing requirements.
What do I need to know about handling confidential medical information?
If you are storing copies of employee vaccination records, you should be aware that this is confidential medical information and should be treated as such. The storage of vaccination records must comply with confidentiality requirements set by the (ADA).
This means you must maintain these records separately from your employees’ personnel files, and you must maintain the records in a safe place where they cannot be accessed by anyone other than you and the HR professionals at your company.
Also, be sure not to include any unnecessary information in these files. Medical or genetic information that is outside of vaccination verification should never be requested or stored. If there is a breach, you may be exposed to liability; simply put, this is none of your business, so keep it away from your business.
According to OSHA, these records may be kept for up to 30 years, and they records may be stored digitally or physically—there are no requirements around this.