Confidentiality of Vaccination Proof or Confirmation
Voluntary COVID-19 vaccine programs for employment are an option some employers are considering.
Employers who aren’t requiring employee vaccination still have the legal right to inquire whether an employee has received the vaccine. This does not violate disability law. However, they may not ask employees about their reasons for not getting vaccinated. Also, as long as employees agree to answer pre-vaccination questions voluntarily, this is legal, even when the employer provides vaccination directly or through an agent.
An underlying medical condition may entitle an employee to reasonable accommodations as long as there is no undue hardship for the employer. For example, some employees may be immunocompromised, and therefore the vaccine does not offer them the same protection.
The ADA and Confidentiality of Vaccination Proof or Confirmation
Vaccination is a medical record. Therefore, it falls under strict confidentiality requirements based on the Americans with Disabilities Act (ADA).
After the EEOC first released guidelines in December 2020, it recommended that employees should not include medical information when providing proof of vaccination. Questions arose as to whether proof of vaccination was medical information and therefore confidential under terms of the ADA. The EEOC affirms that it is.
Consequently, employers requesting vaccination proof must store the records separately from the employee’s personnel file. The following restrictions apply as far as sharing the information:
- When necessary for restricting the employee’s work or duties, employers may inform supervisors and managers
- If the disability requires emergency treatment, then first aid and safety personnel should be privy to the information
- Government officials investigating compliance issues can request the information
Do you have questions about voluntary COVID-19 Programs for Employment?
Legal aspects regarding vaccination and employment continue to emerge. It is wise to seek legal advice by discussing your concerns with an experienced employment law defense attorney. Call (718) 275-6500 to arrange an appointment with Stephen D. Hans & Associates, P.C.