No one imagined that employers would be concerned about employees’ vaccination status nearly two years down the road. You probably assumed that every worker would celebrate vaccination as a simple strategy for lowering COVID-19 infection risks in the workplace. Yet, here we are.
Nearly 72% of all eligible men, women, and children in America have had at least one shot. Unfortunately, that means about 28% have postponed their vaccinations or embraced an anti-vax stance. As the business world has opened up to nearly pre-pandemic normalcy, there’s a good chance you have unvaccinated people in your workplace.
With an average of 120,967 new infections daily, it’s clear the virus hasn’t gone away. As an employer, you can deal with that fact by ignoring the potential for infection and hoping it will fade away. Or, you can ask about your employees’ vaccination status and get ahead of the potential consequences.
It’s Risk Management 101
As an employer, you have to keep your workplace safe. To do that, you must manage known risks. When considering COVID-19, you can’t control your risks without first understanding them. The first step is determining your employees their vaccination status.
As you consider HIPAA laws and privacy issues, you’re probably wondering if you have a legal right to ask your employees that question. The simple answer is Yes. Here’s why.
Health Insurance Portability And Privacy Act
The U.S. Department of Health and Human Services issues guidance on HIPAA, COVID-19 Vaccination, and the workplace. HIPAA guidelines do not prevent “any person” (individuals or businesses) from asking about vaccination status.
- The guidance explains that HIPAA privacy applies only to covered entities (health plans, providers, clearinghouses, etc.) and their associates.
- HIPAA doesn’t prevent an employer from requiring vaccination status disclosures to an employer, clients, and other parties. That’s because it doesn’t apply to employment records.
Equal Employment Opportunity Commission
The EEOC COVID-19 guidance explains that it still enforces the ADA and the Rehabilitation Act. However, their enforcement actions don’t interfere with an employer’s efforts to comply with CDC or local health authority guidelines.
Employers cannot routinely ask questions about a disability or an accommodation; they can ask about a disabled person’s vaccination status. However, guidance item K9 explains that asking about vaccination status won’t likely disclose a disability status.
The EEOC’s guidance answers additional questions, and the agency regularly updates the answers as information changes.
Occupational Safety and Health Administration
OSHA guidelines require that employers maintain a safe environment that’s free from “recognized hazards likely to cause death or serious physical harm.” The agency’s Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace describes vaccination as a “key element of a multi-layered approach to protect workers.” It also recommends telework, distancing, quality masks, and other prevention efforts.
As with other whistleblowers, workers have the right to speak out if they feel their workplace isn’t safe. However, if a worker takes action because a workplace lacks the proper COVID-19 protections, the employer cannot retaliate.
Contact Health Consultants Group
Give us a call at (800) 367-2482 or visit our contact page if you need help refining your workplace vaccination strategy.