Unfortunately, the answer to this straightforward question is not nearly as simple. The EUA (Emergency Use Authorization) status of the vaccines and buzz about “vaccine passport” bans has led to plenty of confusion about employers and their abilities to mandate COVID-19 vaccinations among their staff.
What Are Vaccine Passports?
To clear up some of this confusion, the law signed by Florida Gov. Ron DeSantis banning “vaccine passports” is aimed at businesses and their discretion to refuse to work with customers who are not vaccinated. The law forbids public and private companies from requesting proof of vaccination from customers. As of this blog’s writing, the vaccine passport law looks as if it’s going to stay. However, it only applies to the contractual relationship between customers and businesses; it does not apply to employer-employee relationships.
Is Asking About Vaccine Status a HIPAA Violation?
No. HIPAA (the Health Insurance Portability and Accountability Act) regulates how personally identifiable medical information of individuals should be stored and shared. It is not a HIPAA violation to ask employees or candidates about their vaccination status. However, employers should be wary of asking other questions related to vaccination status unless it is related to the job’s duties.
So, May a COVID-19 Vaccine Be a Condition of Employment?
The EEOC (Equal Employment Opportunity Commission) recently released guidance on this issue. Generally, employers are allowed to require employees to get vaccinated before physically returning to the workplace—with two major caveats:
- The employee has a sincerely held religious belief that would preclude them from receiving the vaccine. It is unlawful to discriminate against employees on the basis of religion.
- The employee has a disability that would preclude them from receiving the vaccine. If a reasonable accommodation cannot be provided for the employee, the employer may be permitted to dismiss the employee if not vaccinating would pose a “direct threat” to others in the workplace.
How Can Employers Get Proof of an Employee’s Vaccination Status?
While there are no definitive answers to this question, Florida employers are being advised to not ask employees for proof of their vaccination status (such as a vaccination card). Employers in other states are receiving different guidance, but, for now, Florida employees can go by the honor system. Again, guidance may change, and sooner rather than later.
To recap: employers MAY require vaccinations for employees, but they should hold off on asking for proof of vaccinations. Because the rules are still being written, it’s important to contact a skilled attorney before rewriting the employee handbook or making any vaccine-related policies. Our team would be glad to help; call the Trembly Law Firm to set up an initial consultation.