One of the biggest challenges for employers has unquestionably been how to respond to COVID-19 in the absence of a local or state public health mandate. Employers have been left to decide whether/how to implement safety measures like masks, and how to account for those who have been vaccinated without running afoul of privacy laws.
Before making decisions about issues associated with COVID-19, there are several factors employers should take into consideration.
Privacy Law Compliance
For employers who have implemented policies that incentivize vaccinations (e.g. no mask policy for vaccinated persons), they should be especially aware of privacy laws. The Americans with Disabilities Act (ADA) requires employers to keep any documentation or other confirmation of vaccination obtained in connection to policy confidential. The ADA regulations do permit sharing confidential medical information in limited circumstances on a “need to know basis.” For example, supervisors must know the vaccination status of the employees reporting to them in order to enforce a mask policy with respect to those who are not fully vaccinated. Nonetheless, employers are encouraged to implement measures to ensure confidentiality and inform employees who receive such medical information of their obligation to keep it confidential.
For those employers who use an “honor system” when it comes to vaccination status, be prepared to address what action to take when confronted with an employee who falsifies his or her status. When investigating an employee’s vaccination status, employers should refrain from asking any questions that may elicit disability-related information or requiring the employee to provide medical information, other than confirmation that an employee obtained the COVID-19 vaccine as part of the proof of status.
Bottom line: With the ever-changing regulatory environment, employers should understand how to properly receive and handle confidential medical information when rolling out new safety guidelines.
Parts of this blog post were originally published in KGR’s monthly article for the Indiana Association of School Principals’ client newsletter. Navigating state and federal regulations can be challenging. For more information, contact our team.