Can Employers Ask for Proof of Vaccination?

With the CDC relaxing its stance of mask-wearing for COVID-19 vaccinated individuals, you might be wondering if it’s within your employer rights to request vaccine status. While the answer is yes, here’s what you need to know to avoid legal issues.

Isn’t asking for proof of COVID-19 vaccination a little too personal?

Before diving into best practices, it’s important to note that the Center for Disease Control (CDC) is a separate entity from the Occupational Safety and Health Administration (OSHA). The CDC does not oversee employer risks and workplace protections; OSHA does. While it feels like a dive into personal territory by asking for proof of vaccination, employers have to maintain workplace safety.

With this in mind, you cannot rely on general CDC guidance for the public when your responsibilities include keeping your staff and customers safe. You must consider local laws and regulations, industry rules, OSHA’s standards, and the potential risk of a lawsuit if someone contracts COVID-19 from your workplace.

All in all, asking for proof of vaccination is your due diligence of maintaining a safe work environment. It’s how you certify whether an employee is safe to be mask-free at work, or whether an employee needs to continue social distancing and/or wearing a mask while on-the-job.

How do I legally ask for proof of COVID-19 vaccination?

While the question itself isn’t a problem, the side conversations and outside information that may be brought to your attention when asking for proof of vaccination could be problematic. Here are tips for how to proceed cautiously:

• Ask to only view vaccine documentation. As much as you’d love to depend on the honor system, requesting to view an employee’s vaccination card is the appropriate way to determine certification. However, employees should only show their vaccine card; no additional medical or family history information should be provided.
• Treat vaccine documentation with confidentiality. Receive vaccine documentation as you would a confidential medical record without retaining any copies of an employee’s vaccine card. Consider making a confidential spreadsheet that includes the employee’s name, which vaccination they received, and the date of their last dose.
• Avoid asking follow-up questions. If an employee responds that they’ve not been vaccinated, don’t ask them for an explanation. This could trigger information protected by the Americans with Disabilities Act (ADA) or the Genetic Information Nondiscrimination Act (GINA). Kindly let them know that, depending on their role and interaction level, the accommodations of social distancing and wearing of masks at work will need to continue until you receive proof of vaccination or until workplace regulations change.
• Don’t ask how the vaccination went. While the question seems harmless (and it’s a common topic of conversation), please avoid asking your employees how they reacted to the shot. Answers could reveal medical and/or disability-related information that you really don’t want to know.
• Ensure your CCPA covers this request (California employers only). The California Consumer Privacy Act (CCPA) requires applicable employers to provide a “notice at collection” when asking for private information like this. If you’ve already provided this notice to employees, you may want to ensure it encompasses this request. Otherwise, you may need to provide a new CCPA.

When should I start asking for proof of COVID-19 vaccination?

There’s no reason to wait, especially if you’re within an area that has already relaxed regulations on wearing face masks. Communication can be as easy as sending out an email and explaining you’re doing your due diligence. Sample wording may include:

“To ensure the safety of our staff members, we request you bring your vaccine cards to [designated person] to certify your eligibility to relax social distancing and mask wearing measures at work. Without this certification, employees may be expected to continue social distancing and wearing masks while on the premises. Please contact your manager with any questions.”

Your managers will need to be instructed beforehand on what to say and which roles may or may not need to continue preventative measures for those without vaccine certification. Develop talking points so they can provide consistent messaging for all staff members.

One other issue to clarify with managers is their responsibility to ensure nobody at work feels harassed or discriminated against for being or not being vaccinated. Any taunting, poking fun, or other forms of harassment should be handled immediately to avoid escalated issues.

For more information or help with your company’s rollout of collecting proof of vaccination, please contact your HR rep.

Sources:
FisherPhillips
SHRM