In the United States, mask mandates are starting to be lifted and people who have been fully vaccinated against COVID-19 are now not required to wear a mask, so can employers ask employees about COVID-19 vaccinations and their current vaccine status before allowing them back to the workplace or to work without a facemask, or would that constitute a HIPAA violation?
There has been considerable confusion about HIPAA and COVID-19 vaccinations and how the Rules of the Health Insurance Portability and Accountability Act apply in such situations. Even in government, not everyone appears to be aware of when the HIPAA Rules apply and to whom.
Recently, in defiance of House Rules, several GOP members refused to wear masks on the House floor even though they had not been fully vaccinated, and Rep. Marjorie Taylor Greene (R-Ga) claimed that asking about her COVID-19 vaccine status was a HIPAA violation, showing a lack of understanding about HIPAA and to whom the legislation applies.
HIPAA, amongst other things, protects the privacy of Americans by placing restrictions on uses and disclosures of protected health information and vaccination information is classed as protected health information. Uses and disclosures of an individual’s vaccine status information and other health information such as test results, allergy information, or diagnoses are only permitted for purposes related to treatment, payment for healthcare, or healthcare business operations. Other uses or disclosures are generally only permitted if an authorization is received from a patient.
HIPAA applies to HIPAA-covered entities, which are healthcare providers, health plans, and healthcare clearinghouses, as well as any vendors (business associates) of those entities that have access to protected health information. The House of Representatives is not a HIPAA covered entity and neither are most employers or individuals, so HIPAA does not apply. Besides, HIPAA does not prohibit anyone from asking whether an individual has been vaccinated against COVID-19 and neither does any other federal law. There are also no laws that require you to answer such a question.
It would be a HIPAA violation, for example, if a healthcare provider was to disclose information about an individual’s vaccine status for reasons other than for treatment, payment, or healthcare operations, or for certain public health activities, without prior authorization. If a reporter or employer called a hospital and asked about an individual’s vaccination status, neither would be in violation of HIPAA, but the hospital employee would violate HIPAA by disclosing that information.
Employers are not prohibited from asking their employees if they have been vaccinated against COVID-19 and there are no federal laws that prohibit an employer or business from asking for proof of vaccination status. If an employer asks an employee about their vaccine status, the employee can refuse to answer, but there could well be consequences.
Employers can require an employee to be vaccinated before they are allowed to work although that would not be permitted for employees with medical conditions that preclude them from getting the vaccine, pregnant or nursing mothers, employees specifically advised by their doctors not to be vaccinated, and employees with a sincerely held religious belief.
Employers and businesses can refuse to allow anyone onto the premises that has not been vaccinated or is not wearing a facemask. In cases where an individual has a disability and cannot wear a facemask or cannot be vaccinated on religious or medical grounds, they cannot be discriminated against. However, it should be noted that the Americans with Disabilities Act (ADA) does allow a business to deny goods or services to an individual with a disability if their presence on the premises would result in a `direct threat’ to the health and safety of others, in cases where the threat cannot be eliminated by modifying existing policies, practices or procedures or accommodating that individual in other ways.
At the state level, laws could be introduced that ban vaccine passports or introduce other requirements related to vaccine status. State laws potentially could potentially prevent employers from requiring proof of vaccination status.
The U.S. Equal Employment Opportunity Commission (EEOC) has issued guidance on the matter, confirming how questions about COVID-19 vaccination status could potentially violate laws that protect individuals with disabilities.
“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,” explained EEOC.
“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.’”
The EEOC went on to explain that “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.”