An FAQ on what you can and can’t do regarding your employee’s vaccination status
The Centers for Disease Control and Prevention (CDC) no longer recommends mandatory mask-wearing or social distancing for people who are vaccinated. However, this is just guidance, because if state or local laws contradict the CDC, then state or local laws take precedence.
But in the areas where the CDC guidance is the top authority, asking staff about their vaccination status can be important, but with significant privacy considerations. On the one hand, an employee’s vaccination status is their own private health information, but on the other hand, an employee’s vaccination status also determines whether or not they need to wear a mask and socially distance at work.
- Can I ask my employees if they are vaccinated?
Employers are allowed to ask their employees about their vaccination status.
- Is asking a violation of the Health Information Portability and Accountability Act (HIPAA)?
No, because HIPAA establishes restrictions on sharing information, not asking. The Equal Employment Opportunity Commission (EEOC) has explicitly said that employers are allowed to ask their employees about their vaccination status.
- Is asking a violation of the Americans with Disabilities Act (ADA) or the Genetic Information Nondiscrimination Act (GINA)?
It can be if you aren’t careful. To avoid violating the ADA or GINA, you should limit your inquiry to only the employee’s vaccination status, avoid any follow-up questions, and inform your employees not to provide any additional medical information. You should also maintain your employee’s confidentiality.
- Can I ask my employee for proof of vaccination?
Yes, you can. The EEOC allows you to obtain proof of receipt of COVID-19 vaccination from your employees, and it’s likely that you can also request a copy of their vaccination card or documentation of their vaccination status.
- How can I maintain my employee’s privacy?
Limit who has access to your employee’s vaccination status as much as possible. Also limit the use of this information: only use it to determine which employees are required to wear a mask, socially distance, and quarantine after exposure to COVID-19.
- Where can I find additional guidance?
In addition to the CDC, the Equal Employment and Opportunities Commission (EEOC) has issued extensive guidelines on best practices for your business, while the Occupational Safety and Health Administration (OSHA) has issued guidance on how best to protect your employees. They will also likely update their guidelines over time.
NFIB has also summarized your business’ biggest considerations regarding mask policy, which you can read here.