COVID Vaccination: Can Employers Ask Employees’ Vaccination Status and Maintain HR Compliance?

Employers across all industries are seeking the best HR strategies for discussing COVID vaccination status with their employees.  Especially in the wake of the federal COVID vaccination mandates for employers, workplaces are unsure if they’ll still maintain HR compliance when they ask about an employee’s vaccination status.  Employers now have more direction with the Department of Health and Human Services (HHS)’s new guidance about HIPAA.  MP’s HR and Compliance experts share three considerations regarding asking for employees’ COVID vaccination status and maintaining HR compliance.

3 Considerations for COVID Vaccination Status and HR Compliance

1. Asking for vaccination status doesn’t violate HIPAA.

Per the HHS’s recent guidance, the “Privacy Rule” component of HIPAA isn’t about employers’ asking for employee health information.  It’s limited to “covered entities” (such as health insurance plans) sharing private health information with third parties.  If organizations are acting as employers, they may also ask for proof of COVID vaccination from their staff, even if they are a “covered entity.” 

Employers that fall outside the “covered entity” category (such as schools, stores, restaurants, etc.) may request private health information from their staff, including proof of COVID vaccination. 

Organizations should note that the Office for Civil Rights (OCR) advises employers to review applicable state anti-discrimination laws.  These may protect employees from meeting vaccination requirements for employment, as well as require specific procedures for documentation of such information.

2. Employers must maintain Americans with Disabilities (ADA) compliance.

Employers may ask for employees’ COVID vaccination status (and per the recent federal mandates for employers, they may be required to request employees’ COVID vaccination status).  Once they obtain this information, employers must maintain ADA compliance.  To comply employers must:

• Store this information separately from other employee information.
• Keep the information confidential, as with any other medical record.
• Be prepared to respond to an employee’s request for a medical or religious accommodation.

3. Employers should develop a system for tracking vaccination status.

MP’s HR services team suggests employers create a separate, organized, and easily accessible electronic system for monitoring employee vaccination status.  (MP offers HR software solutions for this task.)  Utilizing an organized and easily accessible system will be especially helpful if COVID vaccine mandates require employers to track employee vaccination status.