The regulations that may be implicated by the requiring of COVID-19 vaccinations are:
- Health Insurance Portability and Accountability Act (HIPAA); and
- the federal Equal Employment Opportunity (EEO) laws, including the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act (Title VII).
According to the Equal Employment Opportunity Commission (EEOC) guidance that was updated on June 28, 2021, private employers are legally permitted to ask employees and contractors about whether or not they are fully COVID-19 vaccinated and are permitted to require the COVID-19 vaccine as a condition to return to work in person subject to requests for reasonable accommodations as discussed further below, .
Simply asking employees or contractors for proof of their COVID-19 vaccination status is not considered a medical exam under the ADA because there are many non-disability related reasons that may explain why an employee or contractor may or may not have received the vaccine. Therefore, merely asking for proof is not discriminatory. However, asking follow-up questions could place employers in legally risky territory of whether the employee’s or contractor’s disability is the reason he/she has not been vaccinated. Best practice for employers is to advise employees not to provide any additional medical information when asked to provide proof of vaccination. Note that vaccine records are considered medical records under the ADA so they must be treated as such and stored separately from general personnel files.
In addition, the ADA allows an employer to require vaccination if it can show that an unvaccinated employee or contractor would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Therefore, to comply with the ADA, employers should conduct an individualized assessment of four factors in determining whether a direct threat exists from unvaccinated employees or contractors at an office space or customer site and the exposure of the employees or contractors to COVID-19:
Simply asking employees or contractors for proof of their COVID-19 vaccination status is not considered a medical exam under the ADA because there are many non-disability related reasons that may explain why an employee or contractor may or may not have received the vaccine. Therefore, merely asking for proof is not discriminatory. However, asking follow-up questions could place employers in legally risky territory of whether the employee’s or contractor’s disability is the reason he/she has not been vaccinated. Best practice for employers is to advise employees not to provide any additional medical information when asked to provide proof of vaccination. Note that vaccine records are considered medical records under the ADA so they must be treated as such and stored separately from general personnel files.
In addition, the ADA allows an employer to require vaccination if it can show that an unvaccinated employee or contractor would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Therefore, to comply with the ADA, employers should conduct an individualized assessment of four factors in determining whether a direct threat exists from unvaccinated employees or contractors at an office space or customer site and the exposure of the employees or contractors to COVID-19:
- the duration of the risk;
- the nature and the severity of the potential harm;
- the likelihood that the potential harm will occur; and
- the imminence of the potential harm.
Under federal law, it is unlawful to discriminate against an employee who requests a reasonable accommodation or to disclose that an individual is receiving an accommodation. Employers should seek legal advice before taking adverse action against an employee who refuses to be vaccinated and is seeking a reasonable accommodation.
Further, simply asking whether or not an employee or contractor has been COVID-19 vaccinated is not a HIPAA violation. HIPAA does not apply in this context because HIPAA applies to third parties revealing medical information. In this situation, employees would be revealing their own medical information to their employer.
There has been some legislative push-back to allowing employers to require the COVID-19 vaccine. In Indiana, there have been multiple bills submitted to the state legislature surrounding proof of vaccine requirements. The first bill, House Bill 1405, was signed into law and took effect on July 1, 2021. However, this bill prohibits the state or a local unit from issuing or requiring a COVID-19 immunization passport—it has no effect on private businesses or employers.
There are two pending bills, Senate Bill 74 and House Bill 1488, which could affect the above guidance but neither bill has yet passed. Senate Bill 74 would prohibit employers from requiring, as a condition of employment, current or prospective employees to receive any immunization if it is medically contraindicated or against their religious beliefs or conscience. It also prohibits discrimination against any employee for failing to receive an immunization. House Bill 1488 would prohibit employers from requiring, as a condition of employment, that current or prospective employees receive immunizations that have only been granted emergency use authorization and that lack full approval from the FDA. It also prohibits employers from discriminating against employees who refuse immunization and from inquiring about or requiring employees to disclose the reasons for refusing immunization.
In conclusion, if your workplace can substantiate that a direct threat exists from unvaccinated employees or contractors being in the office or at a customer site, your business can require employees and contractors be COVID-19 vaccinated and show proof thereof but should also closely follow the legal developments of challenges to the rights to do so. Obviously, your business must also consider any additional obligations to which it may be bound under union or government contracts or specific state or local laws. If you have questions about vaccines in the workplace or reasonable accommodations, please reach out to Karen Young (karen.young@gutweinlaw.com) or Shannon Middleton (shannon.middleton@gutwienlaw.com).
