Should I ask? How to Ask? Employees and the COVID-19 Vaccine

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  • Should I ask? How to Ask? Employees and the COVID-19 Vaccine

In light of the CDC’s recent guidance for gatherings among and between COVID-19-vaccinated persons (see here), employers may be curious to know if their employees have completed (or plan to complete) a COVID-19 vaccination program.  How should employers go about this?

The short answer: Tactfully.

Last December, the U.S. Equal Employment Opportunity Commission (“EEOC”) hinted that employers could ask employees to show proof of receipt of COVID-19 vaccination (see response to question K.3 here). But the EEOC cautioned that subsequent questions—such as why an employee did not receive a vaccination—could elicit disability-related information and, thus, trigger enhanced legal protections for the employee.

To avoid untoward legal issues, employers should ask a simple “yes” or “no” question (e.g., “have you, or do you intend to, receive a COVID-19 vaccination?”) and explicitly advise employees not to volunteer additional information.

Employers in California must be mindful of treating the employee’s response as confidential under the California Confidentiality of Medical Information Act—even if (as is the case) such information is not protected under its better-known federal cousin, HIPPA.  Likewise, certain California employers (namely, those that generate at least $25 million in annual revenue) may have to update their “Notice at Collection” under the California Privacy Rights Act of 2020 to reflect their collection of COVID-19-related employee data.

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This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between MNK Law and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material.