Can my employer ask if I have received the COVID-19 vaccine? What you need to know

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FILE – This Jan. 24, 2021, file photo shows a vial of the Pfizer vaccine for COVID-19 in Seattle. U.S. regulators on Monday, May 10, 2021, expanded use of Pfizer’s shot to those as young as 12, sparking a race to protect middle and high school students before they head back to class in the fall. (AP Photo/Ted S. Warren, File)

TAMPA (WFLA) – In a move that took the country one step closer to pre-pandemic daily life, the Centers for Disease Control and Prevention eased the indoor mask-wearing guidance for fully vaccinated people, allowing them to safely stop wearing masks inside in most places.

But many are wondering what that will mean for the workplace – will employers have the right to ask workers if they have received the COVID-19 vaccine? Or request proof of vaccination?

Companies including Delta have implemented new rules requiring new employees to be vaccinated against COVID-19 starting Monday. The airline won’t impose the same requirement on current employees, more than 60% of whom are vaccinated, a Delta spokesman said Friday.

Unlike Delta, airlines including American, United, Southwest and Alaska said they do not plan to require vaccination for current employees or new hires. But, American Airlines said it will give vaccinated employees an extra vacation day and a $50 gift card.

Jascha Clark, a shareholder at Salt Lake City law firm Ray Quinney & Nebeker, told KTVX there is guidance from the Equal Employment Opportunity Commission (EEOC) on this topic.

“Employers may ask employees if they’ve been vaccinated against COVID-19 and may also ask employees to provide proof of vaccination, and the reason that this is allowed is because the EEOC generally prohibits inquiries that are disability related,” he explained.

The Americans with Disabilities Act states that an employer can have a policy with “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”

An unvaccinated person is not automatically a threat to others, however, and the employer might also have to make accommodations depending on the reasons behind the vaccine hesitancy.

“An employee with a religious objection or a disability may need to be excused from the mandate or otherwise accommodated,” John Lomax, an attorney with Snell & Wilmer in Phoenix, told the Society for Human Resource Management. “Additionally, if an objecting employee is a union-represented employee, the employer may need to bargain and reach an agreement with the union before mandating vaccines.”

Clark says he has been counseling clients that employers really do have a legitimate business reason to keep track of employees who have been vaccinated for safety reasons.

“Employers can then use this information, together with the risk of transmission by people who’ve been vaccinated, to inform decisions about reopening and expanding the number of individuals in the area and that sort of thing.”

But does asking for proof of vaccination violate the Health Insurance Portability and Accountability Act of 1996, more commonly known as HIPAA? Clark says it doesn’t.

“Generally, HIPAA prevents healthcare providers from sharing information. Here, you’re asking the employee themself to provide the information and so it’s their information – they’re able to share it if they want to,” he stated.

Could an incentive be the way to go for employers?

survey by Jobvite’s 2021 Job Seeker Nation Report, found that employers who incentivize getting the vaccine helps. Of the surveyed workers who disagreed with vaccine mandates in the workplace, one-third said they would get the vaccine if their employer incentivized them.

In a survey conducted by the University of California, Los Angeles, more than 75,000 unvaccinated people were interviewed, and about a third of them said a cash payment of as much as $100 would make them more likely to get the COVID-19 shot.

Ohio Governor Mike DeWine made a splash Wednesday when he announced that a special lottery for people who choose to get vaccinated.

Five lucky adult residents who get shots will receive $1 million during a series of weekly drawings. Five children between the ages of 12 and 17 will be able to will a full-ride scholarship to an Ohio state-run University.

Copyright 2021 Nexstar Media Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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