Verifying employees' COVID-19 vaccination status raises unique confidentiality and privacy concerns for employers. Documentation regarding an individual's vaccination status is confidential medical information under the Americans with Disabilities Act (ADA) and some state privacy laws.

However, the federal requirement to treat COVID-19 vaccination status as confidential information does not bar employers from inquiring about it. Here are some recommendations for your family business when collecting an employee's vaccination certificates or tracking their vaccination status.

Limit the Inquiry

While employers can ask for an employee's status or proof of COVID-19 vaccination under federal and most state laws, they must be careful about obtaining additional employee health information. For example, simply asking the employee to provide proof of a COVID-19 vaccination is allowed under the ADA because it does not require the employee to disclose disability-related information.

If your business asks employees to provide vaccination proof from a healthcare provider, you should tell the employees that they should not submit any additional medical information outside of proof of vaccination in order to avoid potentially violating the ADA.

Clarify What Constitutes Proof of Vaccination

There is no standard proof of vaccination status, given the interplay of frequently changing federal, state, and local vaccine-related guidance. Proof of vaccination status depends on the applicable laws in your jurisdiction. For example, self-attestation is appropriate proof of vaccination status under California's Ca/OSHA Emergency Temporary Standards. On the other hand, self-attestation is insufficient proof of vaccination under many federal vaccine mandates.

We recommend that you only ask the employees to provide the bare minimum of supporting documentation, such as a vaccination card or survey response if it is deemed an acceptable form of proof under applicable mandates. You should further inform the employee how their refusal to provide any proof of vaccination will be treated.

Maintain Confidentiality

Several state and federal laws apply when employers handle employees' medical information. For example, you might be required to provide a collection notice to the employee under state privacy laws.

Additionally, access to confidential information must be limited by ensuring that it is safely stored. The information regarding an employee's vaccination status should be stored separately from the employee's personnel file.

Refrain From Unnecessary Disclosures

Many state laws prevent employers from disclosing the vaccination status of an employee to third parties without the employee's prior consent. You should have a policy in place that notifies employees of the measures you have taken to protect their confidential information.

The policy should be updated in light of any new COVID-19-related rules and guidelines. Additionally, make sure that you are complying with applicable federal and state laws before reprimanding an employee for refusing to disclose their vaccination status.

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