The Mailbag.

AuthorDelogu, Nancy

Can we require employees to sign a document attesting to vaccination? Can we fire if they don't?

Q We are requiring employees to complete an attestation form regarding their COVID vaccination status. If an employee doesn't complete it, can we terminate the person or prevent him from coming to work until he fills it out? Are we violating any laws (HIPPA, ADA, PHI) by requiring the employee to respond to the request?--Anonymous, Hawaii

  1. The ADA and many similar state laws limit employers from asking employees for medical information unless the question is both job-related and consistent with business necessity. The EEOC has said employers can legally ask employees whether they have a fever, are experiencing COVID symptoms or have tested positive because employers need this information to meet their obligations to provide a safe workplace.

    The EEOC has also said employee vaccination status is not an unlawful medical inquiry, and that employers can ask employees for this information. Thus, employees who refuse to disclose their status (and refuse to sign an attestation) can be treated as unvaccinated and may be excluded from the workplace.

    Simply put, a person's vaccination status is not protected as personal health information (PHI) in the work-place. Employees may be surprised that the laws do not immunize them from adverse employment action if they fail to disclose their immunization status or to obtain a COVID vaccination if they can safely do so. However, the United States has a long history of putting public health above individual choice.

    The bottom line: Questions about employee COVID vaccination status are not requests for PHI or medical information. Employers are not prohibited from demanding to know their employees' vaccination status during a worldwide pandemic when there is unquestionably a business need for that information.

    What's the legal way to discipline an unvaccinated worker who won't wear a mask?

    Q Based on CDC guidance, we created a policy that says employees who provide proof of COVID vaccination to HR can choose to be unmasked at work. Unvaccinated (or not fully vaccinated) workers must continue to wear their masks. Should there be specific consequences for employees who do not follow this...

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