With the rise the Delta Variant and breakthrough infections employers have a right to be very concerned over the COVID-19 vaccination status of their employees. The Occupational Safety and Health Administration (“OSHA”) finally gave guidance that gives employers a very strong incentive to ask about vaccination status and to pursue a 100% vaccination rate over their workforce. See https://www.osha.gov/coronavirus/safework. Despite this, employers across New England are running into resistance from their employees. Many employees, incorrectly cite and rely upon the Health Insurance Portability and Accountability Act (“HIPAA”) as they decline employer requests for vaccination status. HIPAA was passed in 1996 to create national standard to protect patient health information from being disclosed without a patient’s consent or knowledge. Anyone in the medical field knows this. However, there is a significant amount of misinformation and disinformation concerning HIPAA and its applicability to COVID-19 vaccination status.
HIPAA DOES NOT PREVENT EMPLOYERS FROM ASKING ABOUT COVID-19 VACCINATION STATUS.
Nothing in federal law, INCLUDING HIPAA, prevents employers from asking their employees whether they have been vaccinated. HIPAA only applies to certain industries including healthcare plans, healthcare providers and healthcare clearinghouses. A statement from the Department of Health and Human Services reads “[i] an employer asks an employee to provide proof that they have been vaccinated, that is not a HIPAA violation.” This, however, comes with the caveat that there are medial and religious exemptions. Remember, the employer must also comply with state and local laws – some of those laws may prevent inquiring about vaccination status so these must be examined before implementing any workplace policy.
Despite this, confidentiality of employee information is front and center on this issue. Employers are still required to keep vaccination status confidential and safeguard that information to avoid running afoul of privacy laws.
But how does this resonate with employees? According to a survey conducted by the American Staffing Association in June, 66% of employees believe they have a right to know whether or not their coworkers have been vaccinated. However, 60% also stated that their vaccination status is no one’s business but their own. See the results of the survey here. https://americanstaffing.net/asa-workforce-monitor/asa-workforce-masking-anxiety/
Can Employers Mandate Their Employees Get a COVID19 Vaccine?
If there is no medical or religious exemption present, there is nothing in federal law that prohibits employers from requiring employees to be vaccinated. Again, state and local laws must be consulted, but there are already companies terminating employees or refusing to hire for the failure to get a COVID19 vaccination in the event an exemption does not apply.