Is It Legal for My Boss to Ask If I Have Been Vaccinated

However, the EEOC has issued specific guidance for employers that offer incentives to get vaccinated if the employer or its representative is the party administering the vaccine. If an employer or its representative administers the COVID-19 vaccine to employees, the employer can only offer incentives, including rewards and penalties, that are «not significant enough to constitute coercion.» This restriction only applies if the employer or their representative administers the vaccine (as opposed to third-party employees in the community, such as pharmacies or health care facilities, being vaccinated), as vaccines require employees to answer questions about disability-related screening prior to vaccination. And a significant incentive could make employees feel pressured. disclose protected medical information to their employer. In some ways, you don`t even necessarily need this documentation. You could just ask the employee to explain that they were vaccinated,» McLaughlin said. «We rely on our employees to be trustworthy and act in good faith in accordance with our policies.» Because most employers are not covered by HIPAA, the privacy rule does not govern whether you can ask questions about a person`s vaccination status or how you can use or disclose that information once you have it. If you believe your employee may have been injured, you should consult a lawyer who specializes in employment law. «It`s about the safety of other employees, so it`s different in that regard than asking them if they`ve had a particular illness or condition in their lives. There are many reasons for public safety why an employer might want to know if employees can be vaccinated, especially if they interact with the public in person and in person. The federal government now recommends that fully vaccinated people – especially those with weakened immune systems – receive a «booster shot» of the COVID-19 vaccine if at least 8 months have passed since the person was fully vaccinated. Booster shots are expected to be available in September 2021.

According to Title VII, an employer should consider all reasonable accommodations that would impose only a minor burden on the employer if an employee refuses to be vaccinated on the basis of a sincerely held religious belief. This de minimis standard is a lower threshold and therefore easier for an employer to set than the unreasonable hardship standard applicable to disability-related accommodations under the ADA. «Employers can ask employees if they have been vaccinated against COVID-19 and can also require employees to provide proof of vaccination, and the reason this is allowed is that the EEOC generally prohibits disability-related claims,» he explains. However, the national requirement to treat vaccination status as confidential information does not prevent employers or businesses from asking their employees or visitors if they have been vaccinated against COVID-19. Note that some states, such as Montana, have passed laws that prevent employers from asking employees and/or visitors for their vaccination status. The EEOC has also published useful information on this topic. «One thing employers should consider is the impact this will have on our employees and whether we are in place to deal with those impacts and/or potential changes in employment,» Pryor said. «It`s a rapidly changing environment,» Riga said. Federal, state, and local agencies regularly adjust their COVID-19 requirements, which can impact the business reasons an employer needs to know an employee`s vaccination status.

If an employee who cannot be vaccinated for a disability or religious reasons is able to perform the essential functions of working from home, this could provide a reasonable accommodation. Working in a separate office or location is another option. If you have questions about these frequently asked questions, contact Erik Eisenmann, Brittany Falkowksi, Barbara Grandjean, Jessica Brown or your Husch Blackwell attorney. Riga stressed that employers should also review applicable state legislation, which may differ from federal regulations and guidelines. In addition, if employers require employees to be vaccinated, they should consider reasonable accommodations for employees with sincere religious objections or objections related to their disability. Since the beginning of the pandemic, Husch Blackwell has been constantly monitoring government orders regarding capacity, masking, vaccines and more. We regularly review your FAQs and provide you with easy-to-use COVID-19 tools to return to work and navigate federal programs. Contact our industry-specific legal teams or your Husch Blackwell attorney to plan for the pandemic and beyond. Employees need to be informed that they may choose to wear a mask for a variety of reasons, so if someone wears a mask, it doesn`t mean they`re not vaccinated, Pryor noted.

In addition, employees should have the choice to wear the badge or ribbon and be advised that this may suggest their vaccination status to others. In general, employers may require employees to be vaccinated. But federal laws may require companies to make reasonable exceptions or precautions for workers who are not vaccinated because of a disability or religious belief.