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Can Employers Make Getting the COVID-19 Vaccine Mandatory?

Experts say employers can make COVID-19 vaccination mandatory, with some exceptions

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Can employers make COVID-19 vaccination mandatory?

Yes, with some exceptions.

Experts say U.S. employers can require employees to take safety measures, including vaccination. That doesn’t necessarily mean you would get fired if you refuse, but you might need to sign a waiver or agree to work under specific conditions to limit any risk you might pose to yourself or others.

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“Employers generally have wide scope” to make rules for the workplace, said Dorit Reiss, a law professor who specializes in vaccine policies at the University of California Hastings College of the Law. “It’s their business.”

The U.S. Equal Employment Opportunity Commission has allowed companies to mandate the flu and other vaccines, and has indicated they can require COVID-19 vaccines.

There are exceptions. For example, people can request exemptions for medical or religious reasons. Some states have proposed laws that restrict mandating the vaccines because of their “emergency use" status, but that may become less of an issue since Pfizer has applied for full approval and others are likely to follow.

How employers approach the issue will vary. Many might not want to require vaccination because of the administrative burden of tracking compliance and managing exemption requests, noted Michelle S. Strowhiro, an employment adviser and lawyer at McDermott Will & Emery. Legal claims could also arise.

As a result, many employers will likely strongly encourage vaccination without making it mandatory, Strowhiro said.

Walmart, for example, is offering a $75 bonus for employees who provide proof they were vaccinated.

Is Asking for Vaccination Records a HIPAA Violation?

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) created a national standard to protect a patient’s health information from being shared without consent. However, HIPAA only applies to healthcare entities and certain organizations.

Businesses that are not in the healthcare industry are not bound by HIPAA. That means it's not a HIPAA violation for most places, including restaurants, retail stores and employers, to ask for proof that you have been vaccinated. It does not mean you have to provide that information.

"HIPAA governs doctors, hospitals, companies like that," said Matthew Kugler, associate professor of law at Northwestern University. "If your restaurant says, 'Hey, show me your medical record,' that's something they can say. You don't have to say 'yes,' like you can be like, 'No, screw you, I'll go elsewhere.' But it isn't a HIPAA problem for them to ask to see it. It's only a HIPAA problem if they break into your doctor's office and steal it."

However, certain issues could arise when it comes to the Americans With Disabilities Act and anti-religious discrimination laws, Kugler said. While asking an employee to show proof of vaccination would not violate the ADA, asking for reasons why someone isn't vaccinated could pose a problem.

"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," the commission states. "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.'"

Can You Be Fired for Refusing to Get a COVID-19 Vaccine?

The answer is yes, also with some exceptions.

Dorit Reiss, a professor at the University of California Hastings College of Law, said that private businesses have pretty extensive rights. “Requiring a vaccine is a health and safety work rule, and employers can do that,” said Reiss. 

According to December guidance from the Equal Employment Opportunity Commission, an employer can terminate an unvaccinated employee if that person "would pose a direct threat due to a 'significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.'"

For those with a religious exemption, the guidelines are similar.

"If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace," the guidance states.

There are, however, a few notable exceptions to this kind of blanket requirement. If a work force is unionized, the collective bargaining agreement may require negotiating with the union before mandating a vaccine.

Anti-discrimination laws also provide some protections. Under the Americans with Disabilities Act, workers who don’t want to be vaccinated for medical reasons are eligible to request an exemption. In this case, an employer would have to provide reasonable accommodation, such as allowing the employee to work remotely. 

Under Title VII of the Civil Rights Act of 1964, if taking the vaccine is a violation of a “sincerely held” religious belief, they, too, would potentially be able to opt out.

Copyright AP - Associated Press
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