(ABC4) — The COVID-19 pandemic has, in the words of Greg Skordas, a lawyer in Salt Lake City, “created all kinds of special circumstances and special exceptions to the rules that we’ve always considered in employer and employee relationships.”
While employers in most states have the right to require the COVID-19 vaccine, do they have the right to ask employees if they received the shot or request proof of the shot?
Jascha Clark is a shareholder at Ray Quinney & Nebeker, a law firm in Salt Lake City. He says there is guidance from the Equal Employment Opportunity Commission, EEOC, on this topic.
“Employers may ask employees if they’ve been vaccinated against COVID-19 and may also ask employees to provide proof of vaccination, and the reason that this is allowed is because the EEOC generally prohibits inquiries that are disability related,” he explains.
“But an employee’s answer doesn’t necessarily reveal a medical condition. There are lots of reasons why they may not have been vaccinated. If employers do decide to require proof of the vaccine or even ask about it, what they could do is instruct employees to only provide information regarding the vaccine and no other medical information,” Clark adds.
Clark says he has been counseling clients that employers really do have a legitimate business reason to keep track of employees who have been vaccinated for safety reasons.
“Employers can then use this information, together with the risk of transmission by people who’ve been vaccinated, to inform decisions about reopening and expanding the number of individuals in the area and that sort of thing.”
But does asking for proof of vaccination violate the Health insurance Portability and Accountability Act of 1996, more commonly known as HIPAA? Clark says it doesn’t.
“Generally, HIPAA prevents healthcare providers from sharing information. Here, you’re asking the employee themself to provide the information and so it’s their information- they’re able to share it if they want to,” he states.
However, if an employee answers that they haven’t received the vaccine, an employer may be required to adjust for them, Clark says.
“Because employers are required under Occupational Safety and Health Administration, OSHA, regulations to generally provide a safe working environment, employers would take the necessary steps to try to find alternative work- perhaps telework for employees or changing their work environment so that they’re not working with people to increase the level of safety.”
So what if an employee really doesn’t want to provide their employer with information about whether or not they received the vaccine?
“We counsel mostly employers, and the counsel that I would give in that situation is that employers should take each issue with an employee on a case by case basis,” Clark says. “Have a private sit-down with the employee; try to figure out what their specific issues are.”
However, a workplace-mandated vaccine could have other implications for employers, he explains.
There is a “possibility that any side effects from a mandated vaccine could fall under a worker’s compensation, and it’s hard to tell. Even though there have been past pandemics, there hasn’t really been this widespread rollout of vaccines and other safety precautions, so we don’t know yet exactly how it will be treated.”
Even though employees can mandate the vaccine, Clark says he is counseling employers to incentivize getting it, such as giving days off around the time employees receive the vaccine or offering gift cards, rather than strictly requiring it.
Skordas says he doesn’t see any problem with employers asking employees if they got the vaccine or not.
The bigger question, he says, is whether or not they can do something about it.
“Whether they can sanction or discipline an employee for not getting the vaccine, but I think it’s a reasonable request for an employer to ask, have you been vaccinated. Especially if its a food services company where an employee is dealing with the public on a regular basis,” Skordas explains.
He explains that “an inquiry about if you have the virus, if you’ve been exposed to the virus, whether now you’ve been vaccinated from the virus” are all fair things for an employer to ask.
“It could relate to whether or not the company stays open for a certain period of time or needs to quarantine or something like that.”
Skordas says an employer may not be able to ask things like if the employee has had other conditions that may be personal, but if they’ve received a vaccine for the COVID-19 virus is really a public safety question.
“It deals with the safety of the other employees, so in that respect, it’s different than asking if they’ve had a certain disease or condition in their lifetime… there are plenty of public safety reasons why an employer may want to know whether employees can be vaccinated, especially if they deal one-on-one and face-to-face with the public.”