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Can Employers Ask for Proof of Vaccination?

As states reopen and companies invite employees back into the workplace, an employee’s vaccination status will become an important factor in minimizing workplace health risks and returning business to normal operations. 

Can employers implement a mandatory vaccination program? What do laws like the Americans with Disabilities Act (ADA) and federal agencies like the Equal Employment Opportunity Commission (EEOC) have to say about this? 

Here is a list of related questions employers should be asking and what solutions might be implemented in order to keep employees safe and maintain regular business operations.

Can an employer require that employees receive a COVID-19 vaccination?

The EEOC has stated that employers may encourage or require COVID-19 vaccinations if their policies comply with the ADA, Title VII of the Civil Rights Act of 1964 (Title VII) and other relevant state and federal workplace laws.¹

In a set of guidelines it issued, the EEOC said that equal employment opportunity laws like the ADA, will “continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19.”²

The Americans with Disabilities Act (ADA) permits employers to prevent employees returning to the workplace if the employer can show that the 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.”²

If an employer asks an employee to disclose medical information relating to COVID-19 vaccination, does this violate HIPAA?

It is within an employer’s right to ask whether or not an employee has received the COVID-19 vaccine. This information is necessary to determine whether or not it is safe for the employee to return to the workplace.

Additionally, the HIPAA Privacy Rule permits Covered Entities to disclose protected health information, without authorization, to public health authorities. This includes the reporting of a disease, like COVID-19, to authorities such as federal, state, and local agencies and health departments.³

Asking whether or not an employee has received a vaccine is a matter of workplace safety. Furthermore, the ADA permits employers to ask for an employee’s reasoning if the employee refuses to obtain the COVID-19 vaccine, assuming that an unvaccinated employee would pose a threat to the health and safety of other employees in the workplace.⁴

On what grounds might an employee refuse vaccination?

Some employees may have disabilities or underlying medical issues that disqualify them from receiving the vaccine. In this case, an employer may deem it a health risk to the rest of the workforce for the employee to return to the office without getting one.

Title VII requires employers to accommodate employees with sincerely held religious beliefs that prevent them from doing certain kinds of work. The law employs broad definitions of religion and religious belief. As such, if an employee requests and accommodation on religious grounds, the employer should assume that it is due to a sincerely held religious belief.¹ 

Another case that might require accommodation would be if a union-represented employee objects to receiving a vaccine. If this were to happen, the employer might need to reach an agreement with the union as to what will be required.¹

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 employee be fired for refusing a COVID-19 vaccination?

As stated previously, the first thing an employer should do in the case of an objecting employee is to try to find some form of reasonable accommodation. If the two parties cannot settle on an accommodation that would allow the employee to continue work, the employer may wish to grant the employee a leave of absence.

Termination should certainly be a last resort, if it is considered at all. Whether or not termination is justified depends on the nature of the employee’s refusal and what state, federal, or local laws may apply. Any employer considering termination of an employee for refusing vaccination should consult legal counsel before carrying it out.¹

Want to know more about how you can become HIPAA compliant?

Email us at info@totalhipaa.com to learn more about how we can help your organization become (and stay!) HIPAA Compliant. Or, get started here.

  1. Employers React to Workers Who Refuse a COVID-19 Vaccination
  2. What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws
  3. HHS guidance on the HIPAA Privacy Rule
  4. EEOC Says Employers May Mandate COVID-19 Vaccinations – Subject to Limitations

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