Balancing Employee Privacy with COVID Need-to-Know

Woman receiving COVID vaccine

Navigating the waters as we return to work isn't easy—but it is doable

As businesses reopen post-COVID and revise policies to align with updated CDC guidelines, employers are in a quandary. What can they can ask and require of employees around vaccinations? How do they balance employees’ rights with their business responsibility to keep everyone safe?

The situation is full of concern about violation of privacy and infringement of personal freedom. But creating policy without good information and getting it wrong could have serious consequences, too.

In many areas, mask wearing is now optional for vaccinated people but required for unvaccinated people. That leads to the question…

Is it OK to ask employees if they are vaccinated?

Guidelines are fluid and local laws vary, but in California, where business owners will be required to provide information to the state on the vaccination status of their workers, businesses have three basic options:

  • Employees can be asked to give proof of a vaccination and the employer keeps a copy of it (but if proof is stored at the business, it must be treated as a confidential medical record and kept separate from personnel files).

  • Employees show proof of a vaccination and the employer records it, but does not keep a copy.

  • Employees “self-attest” that they’ve been vaccinated, on the honor system, and the employer keeps a record of their self-attest statement.

Although it’s OK to ask employees if they’ve been vaccinated, employers have to do it with caution. Employers have the right to ask if an employee is vaccinated and can ask for proof. But they should not ask WHY a person isn’t vaccinated. That question can lead to violations of the Americans with Disabilities Act or anti-religious discrimination laws. Those violations can result in harsh monetary or legal penalties.

Can a business require employees to be vaccinated?

The answer to this question is evolving as current legal battles between employers and employees are decided. The short answer seems to be that it depends on your business, your state, and whether mandatory vaccination can be considered “consistent with business necessity” based on safety concerns. Hospitals and similar medical facilities probably meet this standard (but are still being challenged). For others, it’s not so clear.

A lot of businesses, not wanting to face this challenge, are instead encouraging voluntary vaccination. Employers can offer incentives such as small bonuses, or they can make vaccination easier by providing paid time off for employees to get vaccinated.

Businesses that mandate vaccinations do have to allow for medical and religious exemptions, and must make accommodations for these workers if they can do so without undue hardship. Examples are to have unvaccinated workers wear masks, to use socially-distanced seating, or to reassign them to a less exposed area.

How can we set policy when the issue is so unclear?

Regardless of heated personal debates and the potential to trod on sensitive health privacy issues, businesses have a responsibility here. They must balance employees’ freedom and their right to privacy with the responsibility to do what’s necessary to keep all employees and customers safe.

A legal newsletter responding to these concerns advised that before deciding policy, a business needs a baseline to find what percentage of their workforce is or is not vaccinated. With this information, they can decide whether to continue requiring masks for all employees; to exempt vaccinated workers from wearing masks; and whether to ask for verification or to use the self-attest honor system.

One way to get this baseline information without violating privacy issues is to use an anonymous survey platform such as Suggestion Ox. This would allow employers to include information about why they are asking for the information, who will have access to the survey results, and how they intend to use it—without the risk of more conversation that could lead to privacy violations. Employees respond in private and their response remains anonymous. Then the stats on how employees answered would be collected without connecting them to individuals. This system could also be used to gauge the number of employees who feel comfortable returning to the office, or are in favor of continuing to wear masks.

Employers have the right—in fact the responsibility—to make sure that their employees don’t pose a threat to the health or safety of others in the workplace. But collecting information to guide those policies must be done carefully.

And be sure to stay in tune to your local guidelines—the one certainty is that they’ll be changing!

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