Can Employers Inquire About COVID-19 Vaccine Status Without Violating HIPAA?
Aug 5, 2021 | Written by: | Share
COVID-19 vaccines and masks continue to be hot topics for schools, businesses, and governments. Prior blogs by Sharon Flynn and Leslie Parikh have addressed whether employers can require existing or newly hired employees to be vaccinated. But is simply inquiring about vaccine status a HIPAA violation?
HIPAA, the Health Insurance Portability and Accountability Act, was signed into law in 1996 by President Bill Clinton as part of a nationwide effort to digitize medical records. Under its privacy requirements, HIPAA does make it illegal for certain people and organizations (including health care providers, insurers, health care clearinghouses, and their business associates) to share a patient’s medical records without prior consent. However, the law does not prohibit employers, stores or others not directly involved with healthcare from asking for health information.
In sum, employers and businesses cannot require your medical providers or insurer to share your vaccine status without your consent. But it is not a HIPAA violation for employers or businesses to request proof of vaccination because the law does not prohibit requests for information. Sharing vaccination status is left to the individual’s discretion. Thus, HIPAA does not apply to vaccine status requests. Any organization can ask any employee, customer, or relevant third party whether or not they have been vaccinated against COVID-19 without violating HIPAA. However, before asking the question, organizations should be prepared for how they will respond to individuals’ answers, or how they will respond if an individual refuses to answer the question. They should also be aware of any relevant state laws applicable in their location.
Finally, while employers can ask the question about whether an employee has been vaccinated, care should be taken when asking follow-up questions, such as why an employee has not been vaccinated. Guidance from the Equal Employment Opportunity Commission (“EEOC”) on this issue explains that “there are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.”
Kelly A. Lichtenstein, Esq. is an associate with Gebhardt & Kiefer, PC, and practices primarily in the areas of employment law, civil rights, and civil litigation.
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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.