Despite what you may have read online, asking your employees or customers to provide proof of COVID-19 vaccination doesn’t violate federal laws. Still, experts say to tread lightly in this area.
While some may claim that asking people for proof of vaccination goes against the Fourth Amendment of the U.S. Constitution and Title III of the U.S. Civil Rights Act, legal minds say otherwise. The Fourth Amendment only applies to governmental searches and seizures, not to small businesses asking for proof. When it comes to the Healthcare Insurance Portability and Accountability Act (HIPAA), that law only protects health information used by healthcare entities, like hospitals and insurers. And while businesses do need to follow the guidelines regarding discrimination in the Americans with Disabilities Act (ADA) and the Civil Rights Act, these laws don’t prevent a company from asking a customer or employee about vaccination status.
The U.S. Equal Employment Opportunity Commission (EEOC) allows companies to mandate the flu vaccine and other vaccines and noted that small businesses could require COVID-19 vaccines, too. There are exceptions, of course. For example, workers can request exemptions from getting the vaccine for medical or religious reasons. But asking someone to show proof of a COVID-19 vaccination would not be considered a disability-related inquiry, according to the EEOC.
If an employee doesn’t get vaccinated against COVID-19 due to a disability or a sincerely held religious belief, Title VII of the Civil Rights Act and the ADA require employers to provide reasonable accommodations unless doing so would pose an undue hardship on the business. However, if you exclude an employee for non-vaccination, you may need to show that the employee poses a significant risk of substantial harm to the health or safety of themselves or others that can’t be eliminated or mitigated by reasonable accommodation.
If you require proof of vaccination, you should limit access to that information. According to the EEOC, any documentation an employee provides about their vaccination status is considered medical information and must be kept confidential. Your state may have additional laws to follow in this area. Check the USA.gov website for more information.
Thanks for reading! Please note that this content is intended for educational purposes only. As best practices change regularly, you should refer to your trusted advisor for specific counsel. If you’re a small business owner, learn more about workers’ compensation insurance or check your workers’ compensation rate in 3 minutes.