AMARILLO, TX – The last 18 months have been the Twilight Zone. The following words have entered our vocabulary on a daily basis: COVID, masks, social distancing … and vaccination. As businesses try to function in this “new normal,” they are being forced to address employee health and customer health. A legal question that businesses have never had to ask in the past, but are being forced to ask now, is whether they can ask their employees if they have been vaccinated and whether they can require employees to be vaccinated? This article addresses these and related questions.
Can employers ask their employees if they are vaccinated?
Employers may ask if their employees are vaccinated. However, the Americans with Disabilities Act (the “ADA”) requires employers to maintain the confidentiality of employee medical information, including documentation or other confirmation of COVID-19 vaccination. This ADA confidentiality requirement applies regardless of where the employee gets the vaccination. Although the law does not prevent employers from requiring employees to bring in documentation or other confirmation of vaccination, this information, like all medical information, must be kept confidential and stored separately from employees’ personnel files pursuant to the ADA.
Can employers legally require employees to be vaccinated?
The Equal Employment Opportunity Commission (“EEOC”) has opined that employers are allowed to require all employees physically entering the workplace to be vaccinated for COVID-19, “so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964.” The Americans with Disabilities Act (the “ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”) exempt employees with disabilities (covered by the ADA) and sincerely held religious beliefs, practices, or observances (covered by Title VII) from employer-mandated vaccination requirements and require employers to provide reasonable accommodations or modifications for such exempt employees unless such reasonable accommodations or modifications would cause the employer an “undue hardship.”
Employees requesting an exemption from an employer-mandated vaccination requirement do not need to use special language such as “disability” or “accommodation;” if an employee makes a claim to any manager, owner, or HR employee that he/she cannot receive a vaccination due to a medical condition or religious belief, practice, or observance, the employer needs to undergo the reasonable accommodation process with the employee claiming the exemption.
An employee who does not get vaccinated due to a disability or sincerely held religious belief, practice, or observance may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business. For example, as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, undergo periodic tests for COVID-19, be given the opportunity to telework, or accept a reassignment.
Employees who are not vaccinated because of pregnancy may also be entitled (under Title VII) to adjustments to keep working if an employer makes modifications or exceptions for other employees. These modifications may be the same as the accommodations made for an employee based on disability or religion.
How should employers respond when a vaccinated employee is exposed to COVID-19?
The Occupational Safety and Health Administration (“OSHA”), as well as the Centers for Disease Control (the “CDC”), recommend that fully vaccinated employees who have a known exposure to someone with suspected or confirmed COVID-19 should get tested 3-5 days after exposure and should wear a mask in public indoor settings for 14 days or until they receive a negative test result. Therefore, if an employer receives notification that a fully vaccinated employee is exposed to COVID-19, the employer should instruct the employee to wear a mask while in the workplace for 14 days post-exposure or until he/she receives a negative test result. In general, the CDC considers people fully vaccinated: (a) two weeks after their second dose in a two-dose series, such as Pfizer or Moderna vaccines, or (b) two weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine.
In addition, the employer should instruct a fully vaccinated employee exposed to COVID-19 to strictly monitor himself/herself for symptoms of COVID-19 and maintain social distance (six feet) from coworkers as much as practicable. If symptoms develop, the employer should send the employee home so that he/she may immediately self-isolate.
Can a business ask customers if they have been vaccinated, or does this question impose on customers’ privacy?
Federal law does not restrict business from asking customers about COVID-19 vaccination status. However, some state and local governments have passed laws that do prohibit this question. For example, in Florida, Governor Ron DeSantis issued Executive Order Number 21-81 banning businesses from “requiring patrons or customers to provide any documentation certifying COVID-19 vaccination.” Employers should check their local and state-specific laws relating to this subject.
In addition, organizations that meet the definition of a covered entity under the Health Insurance Portability and Accountability Act (“HIPAA”) must comply with the requirements to protect the privacy and security of health information and must provide individuals with certain rights with respect to their health information.
Brittany K. Hinton, JD, is a member of the Labor and Employment Law Group at Brown & Fortunato. She represents both healthcare and non-healthcare clients in employment counseling. Hinton advises clients regarding COVID-19 legal compliance, wage and hour issues, employment discrimination, non-competition disputes, and employee investigations. Ms. Hinton can be reached at (806) 345-6365 or [email protected].
Jeffrey S. Baird, JD, is chairman of the Health Care Group at Brown & Fortunato, a law firm with a national health care practice based in Texas. He represents pharmacies, infusion companies, HME companies, manufacturers, and other health care providers throughout the United States. Baird is Board Certified in Health Law by the Texas Board of Legal Specialization and can be reached at (806) 345-6320 or [email protected].
AAHOMECARE’S EDUCATIONAL WEBINAR
Oxygen Patients: Free Pre-Screens, Free Use of Equipment, and Other Free Services
Presented by: Jeffrey S. Baird, Esq., Brown & Fortunato & Lisa K. Smith, Esq., Brown & Fortunato
Thursday, September 9, 2021
1:30-2:30 p.m. CENTRAL TIME
Serving oxygen patients always has, and always will be, an important component of the DME industry. With 78 million Baby Boomers, most of whom will live into their 80s, the demand for oxygen therapy will continue to increase. The question facing many oxygen suppliers is whether they are allowed to provide value-added services to oxygen patients such as free pre-screens and free use of equipment for a short period of time. The general rule continues to be that providing free products and services to Medicare patients is prohibited by the federal beneficiary inducement statute and the federal anti-kickback statute (“AKS”). However, in a move to make health care more readily available to consumers, statutes have been passed – and regulations implemented – that give DME suppliers more flexibility to offer value-added services and products designed to give access to health care to those consumers that normally would not have such access. This webinar will discuss the recent changes in the law, including the Affordable Care Act, recent OIG Advisory Opinions, the November 2020 modifications to civil monetary penalties pertaining to patient inducements, and the November 2020 modifications to the AKS safe harbors. This program will discuss how these recent changes affect the ability of suppliers to provide value-added services and products to oxygen patients.
Register for Oxygen Patients: Free Pre-Screens, Free Use of Equipment, and Other Free Services on Thursday, September 9, 2021, 1:30-2:30 p.m. CT, with Jeffrey S. Baird, Esq. and Lisa K. Smith, Esq. of Brown & Fortunato.
Members: $99
Non-Members: $129
