We've all heard the terms, "Vaccine passports," "Digital Health Passes," and the like. While generally enjoying broad support among the public and employers as a way towards getting back to normal, there are still those who oppose such measures 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 (more commonly known as 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" their doing so does not violate HIPAA.
Covered Entities
HIPAA applies only to "covered entities"– healthcare providers, healthcare clearinghouses, 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 – without their written authorization – tells the person's employer he or she has been vaccinated against Covid-19, the health care provider has violated HIPAA. The purpose of HIPAA was to regulate the use of PHI within the health care and health insurance industries, including how that information should be protected from fraud. Disclosure to third persons 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 whether 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 the 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 weighed against the interest of the state and of the federal government to protect its citizens. So, it is moving slowly through state legislatures and Congress. Unless and until that legislation becomes law, however, employers may require proof of vaccination. 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 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 interest. If you want your people at the plant, they may have to show their passports. Until state legislation and congress step in, which does not seem imminent, chalk this up to overly aggressive oversight. If you have any questions about the Covid 19 Passport or other HR issues at your business, give us a call 844-824-2224 or email cvethan@vethanlaw.com. At the Vethan Law Firm, P.C., Your Problem Is Our Business!
Charles Vethan is licensed to practice law in both Texas and California, and is one of a very few Texas attorneys who is dual Board Certified by the Texas Board of Legal Specialization in Civil Trial Law and Consumer and Commercial Law. He earned his Doctor of Jurisprudence at Southern Methodist University (SMU) in Dallas, Texas, where he served as a law review editor of the law journal. Vethan has spent over twenty years aggressively protecting businesses of all sizes, Vethan Law Firm has offices in Houston, San Antonio, Dallas and Orange County CA.
