Can my employer ask if I’m vaccinated?
We’ve had a lot of calls recently asking whether employers can ask employees if they’ve had the vaccine for COVID-19. Some employees believe that asking about vaccination status is a violation of HIPAA rights. Some employees want to know if an employer can ask for proof of vaccination, or just has to take the employees’ word for it. Some employees want to know if, beyond asking about vaccination status, an employer can require employees to be vaccinated or provide incentives for vaccinated employees.
It may surprise some people to learn that the answers to all of these questions are not new. The COVID virus and vaccine are relatively new to the world and to the realm of employment law, but the rules and regulations surrounding vaccination status and the other laws that come into play are well-established and relatively clear.
Yes, your employer may ask if you are vaccinated. Not only that- your employer may ask for proof of vaccination. This is not a new law- employers were legally permitted to ask about vaccination status before COVID, and have even more reason to do so now as COVID is easily spread and unvaccinated employees can put their coworkers at risk. There is no law- HIPAA, the ADA, or some new COVID-specific act- that prohibits an employer from inquiring about vaccination status. In fact, certain regulations, depending on your location and/or industry, may require employers to ask about vaccination status, as it impacts whether employees should be required to wear masks or work in certain positions.
In addition to being allowed to ask about vaccination status, employers can encourage and sometimes even require vaccination as a condition of employment, with some exceptions. It is perfectly legal for employers to have incentive programs or structures to encourage employees to get vaccinated. For example, employers could give a raise or bonus to vaccinated employees or give them preferable shifts or assignments. Employers may also require that employees get vaccinated in order to keep their jobs, with some exceptions. First, if an employee is unable to get vaccinated because of a disability, the ADA may or may not preclude the employer from requiring a vaccine. If the employee truly has a disability that prohibits the employee from getting vaccinated (based on a professional medical opinion, not the employee’s own preference or hypothesis), then the question is whether allowing the employee to remain unvaccinated is a reasonable accommodation and whether it would create an undue hardship for the employer. The employer never has to put other people, such as coworkers and customers, at risk to accommodate a disability. So, for example, if an employee has a disability that prevents the employee from being vaccinated but the employee works with the elderly or in the health care industry, and being unvaccinated would risk spreading COVID to people who have regular contact with the disabled employee, the employer does not have to allow the employee to remain unvaccinated and continue working in a position where others are put at risk. The employer may change the employee’s job in some way to physically remove the employee from working with others, if possible, but if that’s not an option the employer could simply terminate the employee’s employment. The standard for a religious accommodation is similar. If an employee has a bona fide religious objection to being vaccinated, the employer may make an accommodation if possible but is not required to put others at risk.
If an employee is exempt from getting the vaccine due to a disability or religious belief, and the employer has made some kind of accommodation or is otherwise allowing the employee to continue working without vaccination, the employer is still permitted to enact an incentive program for vaccinations and is not required to give that same incentive to unvaccinated employees. The protections employees may have from being forced to be vaccinated due to disabilities or religious beliefs extend to allowing them to keep their jobs, if possible without creating an undue hardship. These protections do not entitle the employees to the same benefits available to others who do not require an exemption.
Gold Star Law is not a professional medical organization and is not qualified to give medical advice. Gold Star Law’s position is that people should follow the advice of their doctors and medical professionals.
If you need help with an employment law problem, contact us.