Compliance Perspectives

Can You Require Lab Employees to Prove They Received the COVID-19 Vaccine?

“No Person May Gain Entry to the Laboratory Without Furnishing Proof of Their  -19 Vaccination Status”

Normally, a sign like this would be highly problematic. Heck, simply asking employees if they’ve been vaccinated, let alone prove it before letting them enter the workplace would raise the brightest of red flags in normal times. But these are not normal times. And during the pandemic, regulatory authorities have temporarily relaxed the normal restrictions and given employers leeway to implement infection control measures that infringe on employees’ personal privacy and rights to accommodations. But nobody should confuse this leeway for a blank check. As with other workplace health and safety protocols, vaccine verification is still subject to legal limits. Here’s what compliance managers need to know to keep their labs’ own vaccine verification efforts compliant.

The 4 Legal Limits of COVID-19 Vaccine Verification

There are four ways your lab can get into legal trouble by not letting lab employees into the workplace without proof of COVID-19 vaccination.

  1. HIPAA Privacy Violations

Whether a person has received a particular vaccination may be deemed protected health information (PHI) that HIPAA bans providers from collecting, using or disclosing (which, for simplicity’s sake we’ll refer to collectively as “use” unless the context requires otherwise) without consent. However, HIPAA consent requirements are subject to exceptions, one of which allows employers to use PHI to carry out legitimate and essential employment functions. Throughout the pandemic, regulatory authorities have indicated that pre-entry medical screening to keep the infected and recently exposed out of the workplace is not only a legitimate but, at least for labs and other health care facilities, a mandatory infection control measure.

But there’s also an important qualifier: Employers are allowed to use only the minimum PHI necessary to accomplish this purpose. Example:

  • OK: Asking employees if they’ve been vaccinated or have any COVID-19 symptoms;
  • Not OK: Asking employees if they have any non-COVID related medical conditions or what medications they use.

The latter inquiries are illegal to the extent they solicit information that you don’t need to perform pre-entry COVID-19 screening.

  1. Disability Discrimination

The Americans with Disabilities Act (ADA) bans employers from requiring employees to undergo a “medical examination.” Equal Employment Opportunity Commission (EEOC) guidelines make it clear that the COVID vaccine doesn’t count as a “medical examination.”

The ADA also bans employers from asking employees (and job applicants) questions likely to elicit information about a disability. The EEOC says that simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability. However, pre-screening may cross the line and become an illegal disability-related inquiry when it includes follow-up questions, such as asking employees why they didn’t get the vaccination. In that case, employers would have the burden of proving that those questions are “job-related and consistent with business necessity.”

  1. Genetic Discrimination

Another legal risk that your lab must navigate is ensuring that its vaccination pre-screening protocols don’t discriminate against employees on the basis of genetic information in violation of the Genetic Information Nondiscrimination Act (GINA). Again, the EEOC guidance provides the greenlight on the GINA concern by specifying that requiring proof that employees have received a COVID-19 vaccine does not involve use of genetic information to make employment decisions nor the acquisition or disclosure of genetic information. But the EEOC also cautions that pre-screening questions that ask about genetic information potentially do violate GINA.

The EEOC also suggests a simple solution to the GINA problem: If employers require employees to provide proof of having received a COVID-19 vaccine from their healthcare provider, they “may want to warn the employee not to provide genetic information as part of the proof.” EEOC said. As long as employers provide such a warning, any information they received in response wouldn’t be considered unlawful under GINA, the agency added.

  1. Duty to Accommodate

In implementing a mandatory vaccination or proof of vaccination policy, your lab must also be mindful of its duty to accommodate employees to the point of undue hardship. Such accommodations may include, depending on the circumstances, exemptions:

  • For employees who can’t take the vaccine due to disabilities or medical conditions;
  • For employees for whom taking the vaccine would violate a sincerely held religious belief, practice or observance (or creed in states where creed is a protected class); and/or
  • For employees to whom the vaccine isn’t yet currently available, e.g., because they’re 30 years of age and current state restrictions limit vaccine access to individuals age 45 or older.

Accommodations may also include allowing employees who cannot or will not furnish proof of vaccination to work from home or admitting them to the lab, provided that they can be physically self-isolated and agree to wear a mask, practice extra hygiene and engage in medical self-monitoring at all times.

Of course, the question of whether a particular accommodation is reasonable or undue hardship will vary by the circumstances involved. The only blanket rule is that there are no blanket rules other than the duty of the lab to perform an individualized assessment of each case, i.e., “engage in a flexible, interactive process to identify workplace accommodation options” based on how big a danger allowing that particular unvaccinated individual to enter the workplace.



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