By now, we've all heard the terms, "vaccine passports," "digital health passes" and the like.
While these measures generally enjoy broad support among the public and employers as a way to get back to normal, there are still those who oppose them and in a few states, such as Texas, their use is banned. Nonetheless, more and more employers are requiring proof of vaccination to return to work. One question that has arisen is whether requiring employees to provide such proof violates the Health Insurance Portability and Accountability Act (HIPAA). The short answer is "no," because an individual always has the right under HIPAA to self-disclose. If someone wants to wear a sign around their neck that says "I've been vaccinated," doing so does not violate HIPAA.
Covered entities
HIPAA applies only to "covered entities" - health care providers, health care clearing houses and health plans - and their "business associates" (vendors contracted by covered entities). HIPAA does not apply to ordinary businesses or individuals. Thus, if a person's health care provider tells the person's employer - without their written authorization - that he or she has been vaccinated against COVID-19, the health care provider has violated HIPAA. The purpose of HIPAA is to regulate the use of protected health information within the health care and health insurance industries, including how that information should be protected from fraud. Disclosure to third parties without a patient's authorization could open the door to fraud and identity theft. But nothing in HIPAA bars an employer from requesting vaccination information from an individual directly.
Privacy? What privacy?
But what if your employer asks you if you've been vaccinated, thereby forcing you to self-disclose for fear of losing your job? Is that a violation of HIPAA? No, but it might be a violation of some other state or federal law. For example, if a medical disability prevents a person from obtaining a COVID-19 vaccination, requiring an employee to disclose his or her disability to explain the reason they have not received such a shot may violate federal legislation such as the Americans with Disabilities Act. Moreover, requiring proof of vaccination is already well-entrenched in American law; schools and colleges, both public and private, routinely require proof of vaccination against various diseases to be allowed to attend. Challenges to these requirements have repeatedly been turned away by the courts.
Slow moves by government
Nonetheless, several states are reportedly considering legislation that would bar an employer from requiring an employee to provide proof of vaccination. But these decisions are weighted against the interest of the state and of the federal government to protect citizens. So, such legislation is moving slowly through state legislatures and Congress. Unless and until that legislation becomes law, however, employers may require proof of vaccination from employees. Employers should be prepared, however, to offer exemptions to vaccine requirements for medical reasons and sincerely held religious beliefs, or offer reasonable accommodations such as working remotely. Failure to do so could result in the violation of an employee's civil rights.
The new post-COVID-19 world
The world has changed in the wake of COVID-19. Medical privacy may take a back seat to what your customers believe is in their best interests. If you want your people at the plant, they may have to show their medical passport. Until state legislation and Congress step in - which does not seem imminent - chalk this one up to overly aggressive oversight.
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