While we are turning the corner on the pandemic, California employers still face challenges navigating the complex health and workplace rules pertaining to COVID. Compliance issues remain for employers that are now collecting information on the vaccination status of their employees.

Storing Vaccination Status Information

Employee medical information must be stored separately. Vaccine status information is likely to be considered medical information. Both federal (ADA and HIPAA) and state law require that all medical information be kept separate from the employee’s general personnel file. That means that such information should not be stored in the same physical or electronic file as the employee’s more traditional personnel or payroll records.

Vaccine Status is Likely to be Considered Medical Information

In addition, employee medical information is considered confidential in California, when obtained for purposes of reasonable accommodation. 2 CCR §§ 11069(g) and 11071(d)(4). The same interpretation is likely to be made when it comes to information obtained about COVID-19 vaccination status for safety and compliance purposes. Therefore, unless (a) there is a compelling need to distribute the vaccine status information of an employee that outweighs the expectation of privacy (for example to certain management employees for purposes of safety compliance) or (b) the employee waives/consents to the publication of his or her vaccine status, an employee’s Covid-19 vaccination status and any documents collected related to that status should be kept confidential.

Tips for Compliance

Employers should be aware of how their HR Department and managers are storing vaccine status information obtained from their employees and ensure they are protecting the privacy of such information and keeping it separate from the traditional non-medical personnel records.

If vaccination status if stored electronically, employers should make certain to password protect this information and limit access to only those who are expressly authorized to view it, such as human resources. In addition, this information should be stored in separate electronic files from the traditional non-medical personnel records.

Lawsuits related to vaccine mandates, paid time off for vaccinations, and many other vaccine-related issues will be on the rise in 2021 and 2022. It is important to make sure that the custodians of this information in your organization are properly storing this information and keeping it confidential and complying with applicable laws.