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Identifying employees who are vaccinated

Vaccinated status may be confidential medical information

Posted May 21, 2021 

Ah, the masks can come off for the fully vaccinated. What does this look like at work? If they can go maskless, will you require your vaccinated employees to somehow display, for all to see at work, their vaccination status? A sticker on a company ID card, a bracelet, a pin – all indicating that an employee is fully vaccinated. Only those with such an identifier can go maskless. Sounds good, right?

Of course, you first need to know which employees are vaccinated. Is asking employees for this information a HIPAA Issue? Not likely, as the HIPAA privacy rules apply only to employers in their activities as group health care plan sponsors, but not in their activities as employers.

The EEOC, which enforces the employment anti-discrimination laws such as the ADA, also indicates that asking employees about vaccine status does not violate the ADA. The ADA does, however, require that employers keep employee (and applicant) medical information confidential. Is vaccinated status medical information? The EEOC has not specifically indicated. Some employment lawyers indicate that it is.

With this in mind, employers are struggling to figure out how to maintain an employee’s vaccine status as confidential while enforcing a mask policy that allows only fully vaccinated individuals to go mask-free in the workplace?

But wait, if the vaccinated can remove their masks, won’t their vaccine status become known? They will be the ones without masks. This is likely, but the vaccinated employees may continue to wear masks, so it is generally their decision to display their vaccination status. Requiring them to display their status may go too far.

Employers are expected to limit who has access to employee medical information. Often, for example, only those in HR who enforce workplace conduct or health and safety protocols should have access to this information, which should be used only to enforce policies.

To complicate matters, employers must be aware of state laws. Some states have not lifted their mask mandates. Others consider vaccination status a protected class.

Another risk of having two different masking protocols is treating different employees differently. Will only the vaccinated be allowed back in conference, lunch, and break rooms? Will the unvaccinated go unchosen for projects, assignments, or other opportunities? Remember, some employees are unable to be vaccinated, perhaps due to a medical condition or a sincerely held religious belief. Treating them in a less-than-favorable manner could also risk a discrimination claim. If you’re going to treat vaccinated and non-vaccinated employees differently, train your managers. Have a well communicated policy that prohibits employees from confronting one another about mask wearing. Instead, have employees report masking issues. The policy should also prohibit employees from asking each other about their vaccination status.

Given all this, here are some options to consider before you test these shifting waters:

Safest route: Continue to require all employees to wear masks in the workplace. Nothing in the CDC guidance prohibits an employer from keeping a mandatory mask rule in place. This might also make defending an OSHA claim easier.

Less safe route: Allow fully vaccinated employees to go maskless on the honor system; don’t mandate that they display their vaccination status, even if you do collect it. Employees can choose to do so if they wish (in part by not wearing a mask).

Riskier route: Require employees to display their vaccination status — unless and until the EEOC says this is not an ADA violation, which it likely is.

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.

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