As the State of Michigan turns toward lifting COVID-19 related restrictions that have precluded most office work and have limited the density of crowds allowed at bars, restaurants, gyms, and other public venues, many employers are wrestling with how to move forward in a way that is safe for both their employees and clients while at the same time not running afoul of employee privacy laws. Here are some tips to assist in the decision-making process.
To avoid employees getting ill with the virus and infecting others and to manage staffing, many employers are requesting that employees disclose their vaccination status. This is entirely legal and appropriate. A vaccination card does contain health information but unless you are a hospital, physician, or health insurer the mandates of HIPAA do not apply. That said, the employee still has privacy rights and so any data obtained from review of the card is not to be shared and is to be kept separate from the employee’s personnel file.
Where it gets difficult is asking “why not” if an employee has not received the vaccination. For the reasons explained below, you should not ask that question unless you are mandating that they receive the vaccine as a condition of continued employment – again, something that is entirely legal. If the vaccine is mandated, the employee can refuse it in only the following limited circumstances:
- They have a sincerely held religious belief against it.
- They have a medical condition that precludes them from receiving it.
This is where the “why not” question gets implicated. If they raise the first issue, you have to address it in the same way as other religious practice issues. If they raise the second issue, you have to go through the ADA accommodation process to determine reasonable accommodations that will enable them to do their job – working remotely, working with a mask, working behind a shield, etc.
In the absence of the need for accommodation, care must be taken not to treat unvaccinated employees differently than vaccinated employees. For example, if an employer only assigns vaccinated employees to a certain shift or work area, the practice may run afoul of prohibitions on disclosing medical information by way of inadvertently designating which employees have, and which have not been vaccinated.
Although vaccines can be mandated, many employers are hesitant to take that step and are considering incentives to achieve the same result without the push back that often comes from mandates. This is tricky because, despite numerous requests, the EEOC has not weighed in on the issue and so the consensus is that they will treat the issue in the same way that they treat incentives to participate in wellness programs.
Basically, a de minimus incentive will not be a problem because it doesn’t coerce those who have religious or medical reasons to be vaccinated despite those reasons. Offering more than that does run the risk of discrimination against those who are not vaccinated due to religious or health reasons. A de minimus incentive can be a physical object such as a water bottle, or a gift card of modest value (we’ve seen this range from $75-$500, with most on the lower end). Other incentives in general use include an extra vacation day after receiving the second dose, paying for the time spent getting the vaccine, and paying for time off if side effects are encountered. Certainly, the pay for time off to get the vaccination or deal with the side effects will not be considered coercive to those not being vaccinated for religious or medical reasons because the pay only replaces time missed from work for which the employee receiving the vaccination would otherwise have to use PTO or other leave to cover. This incentive does nothing more than level the playing field between the vaccinated and unvaccinated employees. The bottom line is that an employer that does not want to mandate vaccination can offer modest incentives to increase the vaccination rate of its workforce without running afoul of the law.
Like most issues related to COVID-19, best practices regarding vaccine cards and vaccine incentives are evolving at a rapid pace. The Rhoades McKee Employment Law Team will keep you up to date on the important issues to consider as you bring your workforce back from their home offices.More Publications