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Most current COVID-19 safety protocols depend on vaccination status, verification and vaccine mandates and consequently raise unique confidentiality and privacy considerations for employers and employees alike. Below are some important points to keep in mind when tracking, collecting, or disclosing an employee’s vaccination status in various circumstances.

The Vaccination Inquiry

With the exception of a few jurisdictions that limit employers’ ability to pose vaccine inquiries or seek proof of vaccination, employers are permitted to ask for an employee’s vaccination status or proof of vaccination under federal and state law. And contrary to a popular misconception, this inquiry is not blocked by, nor does it violate, HIPAA.

However, employers who ask about an employee’s vaccination status or proof must be careful about delving into an employee’s other health information. For example, simply tracking if an employee was vaccinated or asking an employee to produce a copy of their vaccination card or an attestation with the date(s) the vaccination was administered is acceptable; but asking an employee why they were or were not vaccinated could be a disability-related inquiry, triggering additional obligations.

Proof of Vaccination Status

There is no universal “proof” of vaccination status with the variety of federal, state and local COVID-19 and vaccine-related guidance, ordinances, and mandates. Acceptable proof will vary depending on the vaccine mandate or jurisdiction. For example, in some states a self-attestation is sufficient proof of vaccination status. However, under the federal contractor mandate and many other vaccine mandates, self-attestation is not an acceptable form of proof.

Vaccine-Related Information and Medical Records

Whether documents are considered medical records and subject to privacy or confidentiality laws generally depends on the federal or state law that contains the restrictions at issue.

Federal Workplace Safety Officials

Under the Occupational Safety and Health Act, medical records include any document regarding an employee’s health status made or maintained by a physician, nurse or other health care professional. Such records must be retained for the tenure of the employee – plus 30 years. This includes medical histories, medical examination results and opinions, diagnoses, progress notes and recommendations, first aid records, descriptions of treatments and prescriptions, and employee medical complaints.

Relevant State Laws

Some state laws also define medical records. For example, in Ohio, the definition includes any medical report arising from a physical examination by a health care professional or hospital or laboratory test results. Other jurisdictions have specifically addressed vaccination records and the maintenance of the records.

What Does the EEOC Say?

Pursuant to EEOC guidance, employers should treat vaccination records as confidential medical information, maintained confidentially and stored separately from an employee’s personnel file. The EEOC has also provided guidance that the inquiry or request for proof of vaccination itself is not a disability-related inquiry. So, employers who track vaccinated employees or request proof of vaccination must be careful not to inquire further into an employee’s other health information.

Thus, employers must have clear documentation limiting the inquiry or specifically listing the forms of acceptable proof with a clear reminder not to provide any other medical-related information. Employers should also maintain the vaccine-related information and documentation in a secure and separate location and not put it in employees’ existing medical files. Finally, employers should specifically designate who will collect and enter the data, and review carefully to make sure any data is entered accurately.

Confidentiality and Disclosure of Medical Records and Information

With limited exceptions, federal law requires employers to keep confidential any medical information they learn about any applicant or employee. Medical information includes not only a diagnosis or treatments, but also the fact that an individual has requested or is receiving a reasonable accommodation.

As already stated generally, federal law requires that all medical information about a particular employee, including all medical information related to COVID-19, be stored separately from the employee’s personnel file, thus limiting access to this confidential information.

Indeed, according to the EEOC, although the EEO laws do not prevent employers from requiring employees to provide documentation or other confirmation of vaccination, this information must be kept confidential and stored separately from the employee’s personnel files.

Decline to Disclose Vaccination Status

Employees who refuse to disclose their status should be treated as unvaccinated. Even with a mandatory vaccination policy, employers should ensure there is a process in place to address issues of accommodation for employees with protected objections to receiving the vaccination.

The rules and government guidelines regarding the COVID-19 situation are rapidly changing and developing. Schwartz Rollins LLC is monitoring these changes and will continue to provide updates as we deem appropriate. This information is not intended to be, and should not be construed as, legal advice for any particular fact situation. Feel free to contact us with specific questions. To find out more information about the products and services we provide, please contact one of our attorneys (Jay Rollins or Debra Schwartz, or our paralegal, Vicki Perry) at 404-844-4130.


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