What employers can ask about your immunization status – and what they can’t

By Catherine Vasel | CNN Affairs

More companies are bringing workers back to the office – and some employers want to know the immunization status.

Morgan Stanley has told employees who work at its Manhattan headquarters that they must be vaccinated against Covid-19 before returning to the office. The bank also said in a note to New York employees that staff working in buildings with a “significant employee presence” must confirm their vaccination status by early July.

Goldman Sachs also requires U.S. employees to disclose if they have been vaccinated, but does not require workers to be vaccinated.

“We are seeing more and more policies for employees who have been fully vaccinated and policies for employees who have not,” said Erin McLaughlin, labor and employment lawyer at Buchanan, Ingersoll & Rooney.

Employers can ask questions about status

Generally, employers can require workers to be vaccinated. But federal laws may require companies to provide exemptions or reasonable accommodations to workers who are not vaccinated due to a disability or religious beliefs.

The Equal Employment Opportunity Commission, the federal agency that enforces non-discrimination in employment laws, said asking questions about immunization status or documentation does not violate federal equal employment opportunity laws.

But any documentation an employer keeps regarding immunization status should be kept confidential.

“If you ask for a [vaccination] card and make a copy of it, keep that information like you keep other medical information, ”McLaughlin said.

Some employers may choose to simply ask employees for their immunization status and rely on the honor system, rather than asking for documents.

“In some ways, you don’t even necessarily need to require this documentation. You could just ask the employee to tell you that they have in fact been vaccinated, ”McLaughlin said. “We rely on our employees to be trustworthy and to act in good faith in accordance with our policies. “

When asked about immunization status, lawyers advised employers to limit the investigation, especially if the answer is “no”.

“Generally speaking, the impetus is going to be to ask why,” said Stephen Riga, lawyer at Ogletree Deakins in Indianapolis. “An answer that is involved there is potentially burdensome, legally.”

Asking questions about why someone was not vaccinated could reveal medical, disability or religious information that is protected by federal law.

“The employer can’t ask why you aren’t vaccinated because the EEOC said you can’t,” said Patricia Pryor, co-head of the National Advice and Counsel Practice Group at the law firm of Jackson Lewis work in Cincinnati. “The ADA prohibits employers from conducting medical investigations that could identify or disclose a disability. So you can’t ask why, as there is a possibility that this type of question will impact ADA.

McLaughlin said that employers who do not plan to impose vaccines, or who do not plan to have different policies in place for vaccinated and unvaccinated workers, likely do not need to know the vaccine status of a worker.

“Don’t ask for information you don’t need,” she said.

State laws could be more restrictive in what employers can do.

“A handful of states have adopted restrictions on the ability to apply for or use vaccination status under certain circumstances,” Riga said.

Even if they can ask, should they?

Businesses need to be aware of the impact that applying for status can have on workers, Pryor said.

“Regardless of the fact that legally it seems that in most cases employers can apply, there are risks involved,” she said. “The practical risk is that a good percentage of your employees will believe – whether true or not – that you can’t ask, shouldn’t ask, or invade their privacy.”

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