Biden’s Announcement About Mandatory Vaccinations for Private Employers

If you have fewer than 100 employees, no federal contracts, and no healthcare workers, these new federal requirements do NOT apply to you.

We are actively monitoring for the details of President Biden’s COVID action plan. The aspects of this new plan that affect HR and how you run your business will come from DOL rules called Emergency Temporary Standards (ETS), written by the Occupational Safety and Health Administration (OSHA); executive orders (EOs) from the President; and (for healthcare workers) regulations from the Centers for Medicare and Medicaid Services (CMS). When relevant information becomes available, we will update you via an eAlert and provide information on the HR Support Center. In the meantime, here is what we know:

Employers with 100 or More Employees

Employers that have 100 or more employees will be required to:

  1. Mandate their employees get vaccinated against COVID or submit to weekly testing; and
  2. Provide employees with paid time off to get vaccinated and recover if they experience side effects from the vaccine.

It’s possible that the weekly testing option will be reserved only for those who request testing as an accommodation to mandatory vaccination because of a sincerely held religious belief, disability, or pregnancy. We expect the new ETS to address this.

We don’t yet know if there will be a way for employers to get reimbursed for costs associated with compliance.

Federal Contractors

Federal contractors will be required to mandate vaccination among their employees.

Healthcare Workers

Workers in most healthcare settings will be required to be vaccinated.

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Three Questions About COVID Vaccinations

Can we ask for proof of vaccination? Isn’t this a HIPAA violation or an illegal inquiry under the ADA or somehow confidential information?

Employers can ask for proof of vaccination unless there is a state or local law or order to the contrary.*

When an employer is requesting or reviewing medical information in its capacity as an employer, as it would be when asking about an employee’s vaccination status, it is considered to be an employment record. In such cases, HIPAA would not apply to the employer. The Americans with Disabilities Act (ADA) will govern the collection and storage of this information.

The Equal Employment Opportunity Commission (EEOC), which enforces the ADA, has stated that asking about vaccination is not a disability-related inquiry, though it could turn into one if you ask follow-up questions about why the employee is not vaccinated. Asking a yes or no question, or requesting to see the employee’s vaccination card, does not violate any federal laws or require proof that the inquiry is job-related.
 
Finally, just because employees think that something is or should be private or confidential doesn’t mean they can’t be required to share it with their employer. Social Security numbers, birth dates, and home addresses are all pieces of information an employee may not want to advertise, but sharing is necessary and required for work. Vaccination status is similar. However, all of this information, once gathered, should not be shared by the employer with third parties, except on a need-to-know basis.

*It appears that some governors may attempt to prevent certain entities from requiring “immunity passports” (e.g., proof of vaccination) through an executive order (EO), though as of July 31, none of the EOs already issued appear to apply to private businesses and their employees. Also note that if there is a law in place that prevents treating vaccinated and unvaccinated employees differently (like in Montana), you may be able to ask, but not take any action based on the response.

Should we keep a record of who is vaccinated or make copies of vaccination cards? If we do, how long should we keep that information?

If you’re asking about vaccination status, you’ll want to keep some kind of record (so you don’t have to ask multiple times), but how you do this is up to you, unless state or local law has imposed specific recordkeeping requirements. You may want to keep something simple like a spreadsheet with the employee’s name and a simple “yes” or “no” in the vaccination column. If you’d prefer to make a copy of their vaccination card, that should be kept with other employee medical information, separate from their personnel file. Per OSHA, these records should be kept for 30 years.

If we keep a record of who is vaccinated, can we share it with managers who will be required to enforce policies based on that information, such as masking and social distancing?

Yes. We recommend not sharing this information any more widely than necessary. While anonymized information is okay to share (e.g., “80% of our employees are vaccinated”), each employee’s vaccination status should be treated as confidential, even if the fact that they are wearing a mask to work seems to reveal their status publicly. Obviously, managers will need this information if they are expected to enforce vaccination-dependent policies, and employers should train them on how they should be enforcing the policies and how and when to escalate issues to HR or a higher level of management.

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