This has become a very common question with our clients of late. You may be wrestling with the question of whether or not to mandate a Covid-19 vaccine policy in your business. As with any situation it is best to understand all of the factors that arise from maintaining a safe work environment. Lets review below…
Are we permitted to ask our employees about their vaccination status?
Yes.
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. Find out more, here.
Are we permitted to ask employees to provide proof of vaccination?
Yes.
Under the same EEOC guidelines discussed above, 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 a question such as, “Why not?” because this question can potentially 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 very complex and tricky conversation.
How should we ask employees about vaccination status?
This can 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. (IMPORTANT NOTE: 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., “75% of our employees are vaccinated”) and may be important when making decisions about mask policies or social distancing requirements.
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 currently no requirements around this.
With attention surrounding the Covid-19 vaccine magnifying by the day, business owners just like you increasingly feel the weight of present decisions while standing under a microscope of scrutiny. Unfortunately-regardless of the path you choose to embark- just one small mistake can land you into some hot water, and we’re going to begin seeing repercussions involving the uneducated decisions of business owners around the country.
It’s no secret that our employees’ potential is our company’s greatest asset; they show up everyday to help make your dreams a reality, therefore it is YOUR responsibility to ensure their satisfaction with definitive measures and proper compliance.
Whether you are apprehensive in finalizing a company wide mandate or inconsistencies in your current policies bear subject to opposition, let our team at MCDA CCG, INC. ensure your legal compliance throughout your actions.
As part of our proactive service approach, our team of Human Resource specialists can ensure the compliance of your current team by either setting up an HR Department for your company or by performing an audit to validate strengths and identify weaknesses pertaining to applicable Covid-19 requirements. If you need help with our recommendations, we will be happy to provide assistance as needed.
In instances where employee relation issues begin to escalate, most employers shy away in feelings of discomfort and a lacking HR department may take time in deciding the best course of action. (With the added uncertainty of Covid-19 regulations, this may take even more time.). Because employee relations rarely resolve on their own, our experienced team can come in and help with EEO charges, internal investigations, discipline issues, and more.
Or maybe you need assistance in generating surveys to collect accurate data, hosting proactive meetings, and/or information briefs to work forces, whichever it is, our up to date knowledge of current laws and regulations can ensure you and your company’s ultimate protection.
Don’t wait for a situation surrounding the Covid-19 vaccination mandate to appear or escalate, contact us today for a no-obligation discussion!
