While its rollout has been slow, the vaccine is being administered across the U.S. and in other countries. As of January 15, 2021, nearly 36 million doses of a COVID-19 vaccine have been administered, just over 11 million in the U.S. For a variety of reasons, organizations want to know whether their workforce members (employees, contractors, etc.) have been vaccinated. Some are trying to assess prospects for return to work, while others want to provide incentives to get the vaccine, and still others are managing customer demands to know if their vendor’s workforce has been vaccinated.

The EEOC has provided some guidance on the issue:

K.3. Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? (12/16/20)

No.  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.  However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.”  If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

So, based on the answer to the question posed above, we know the EEOC’s position is that asking or requiring employees to provide information on whether or not an employee was vaccinated is not a disability-related inquiry under the Americans with Disabilities Act (ADA). But that may not be the end of the inquiry. These are several considerations and best practices that organizations might consider before putting such requests to their workforce members.

  • Who wants the information, and why? As noted above, there could be several reasons for wanting to ask employees about their vaccination status. Those reasons can affect compliance and best practice considerations. For example, if an organization is working to accommodate customer demands for vaccination status of the organization’s employees who are performing services at the customers’ facilities, the organization might want to consider, among other things:
    • Does it need to provide the information to the customer?
    • Is consent/authorization necessary?
    • How should the information be transmitted?
    • Who at the customer would have access to that information?
    • Will the customer safeguard it?
  • What steps can be taken to limit compliance risk? If an organization decides to ask workforce members about their vaccination status, there are steps it can take to minimize compliance risk. For instance, an organization can minimize the chance of an ADA violation by (i) designing the request so it is not likely to elicit information about a disability, (ii) not asking why an individual did not receive a vaccination, and (iii) warning the employee not to provide any medical information as part of the requested proof of receipt of a COVID-19 vaccination. Similarly, employers that are subject to the California Consumer Privacy Act (CCPA) and wondering whether their notice at collection to California employees needs to cover vaccination information may decide to provide notice in the abundance of caution.
  • Is it necessary to even ask employees directly…couldn’t the organization look at its health plan’s claims information for vaccine-related administration charges? Aside from being arguably more administratively difficult, this method likely would be considered a violation of the HIPAA privacy rule. Plan sponsors may not use protected health information under HIPAA for an employment purpose without the employee’s authorization.  
  • Does the collection and processing of vaccination information raise data privacy and security risks? Even if making the request is not a disability-related inquiry, it may be considered a medical inquiry, and the employee’s response, confidential medical information. While not subject to HIPAA in the employer-employee context, this information still may have protections under state statutory and common law. Consider, for example, that several states, such as California and Florida, include “medical information” as part of the definition of “personal information” under their breach notification laws. Accordingly, if that information is breached, which could include access to the information by an unauthorized party, notification may be required.

Additionally, statutory and common law obligations exist to require employers to safeguard employee personal information, which may include information about their physical health, such as vaccination status. Thus, maintaining reasonable safeguards to protect such information is prudent. This might include access management measures and record retention and destruction policies. It also may include having clear guidelines for making disclosures of this information and determining whether an authorization is needed before such information may be disclosed or accessed by a third party.

These are just some of the issues organizations may find themselves grappling with as COVID-19 vaccinations become more available. Thinking them through carefully should help organization minimize their compliance and legal risks as they continue to manage their businesses through this pandemic.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently leads the firm’s Privacy, e-Communication and Data Security Practice, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with…

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently leads the firm’s Privacy, e-Communication and Data Security Practice, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Mr. Lazzarotti also is a member of the firm’s Employee Benefits Practice Group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Mr. Lazzarotti counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Mr. Lazzarotti’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Mr. Lazzarotti speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Mr. Lazzarotti served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.