In general, the HIPAA Rules do not apply to employers or employment records. HIPAA only applies to HIPAA-covered entities – health care providers, health plans, and health care clearinghouses – and, to some extent, to their business associates. If an employer asks an employee if they are vaccinated or to provide proof that they have been vaccinated, that is not a HIPAA violation, and employees may decide whether to provide that information to their employer.
Category: Compliance & Legal
Do any federal or state laws protect employers from liability if they mandate vaccination or offer a COVID-19 vaccine to their employees?
Not at this time. Currently, if employers mandate vaccines and an employee has an adverse reaction, they could potentially have a worker’s compensation claim. That’s not to say that this stance might change or that with the release of the new Emergency Temporary Standards that this particular question could be addressed. It seems that if it isn’t directly addressed, it will likely be tested in court as the vaccine mandate for large private employers goes into effect later this year.
What should we do if an employee refuses to comply with our mandatory vaccine policy?
While employers may be able to make vaccinations a condition of employment absent medical and religious accommodations, some employees may have general objections to receiving a COVID-19 vaccination and employers need to decide how they will proceed in these circumstances. Terminating employees might not be the desired approach, but allowing for a leave of absence, transfer to another position, telework or other modifications might be acceptable solutions.
We have a client who’s a government contractor and they’re asking one of their facilities what percentage of their guards have been vaccinated. They aren’t sure how to respond to that. What is the legality of a question like that? Can they require vaccinations for guards on duty?
While employers are allowed to ask employees about their vaccination status, employers should treat this information as confidential unless they have a legitimate business reason to disclose it. For example, employers whose employees are in-home caregivers for elderly clients can most likely confirm to their clients that their employees are vaccinated. The best practice would be to have employees voluntarily consent to the disclosure to avoid potential privacy issues under state law (if applicable). Employers may be prohibited from disclosing additional information, however, such as the fact that an employee didn’t get vaccinated because of a disability.
Alternatively, it is likely acceptable for employers to share a more general statement about their employee vaccination status, e.g. “All employees are vaccinated” or “X% of employees are vaccinated.”
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 so is up to you, unless state or local law has imposed recordkeeping requirements. You may want to keep something simple like an excel spreadsheet with the employee’s name and a simple “yes” or “no” in the vaccination column. If you’d prefer to take a copy of their vaccination card, that should be kept with other employee medical information, separate from their personnel file. Alternatively, you could have employees complete our sample Verification of Vaccination Form.
If state or local law requires recordkeeping, then follow those requirements, including how long the records should be kept. If no law is in play, we recommend keeping the information for as long as you keep other information in employee medical files.
Finally, make sure that you don’t discriminate against employees who aren’t vaccinated because of their religious beliefs or disabilities. Title VII of the Civil Rights Act protects these characteristics and requires that you make reasonable accommodations for employees whose religious beliefs or disabilities prevent them from complying with your policies.
What are the penalties and costs for misclassifying employees?
The answer will depend on a number of factors, such as how many employees are misclassified, how much extra money they would have been paid if properly classified, and whether or not lawyers or regulatory agencies get involved.
Generally, if an employee goes to the federal Department of Labor (DOL) and claims that they’ve been misclassified, the DOL will investigate. If the DOL determines that an employee—or entire group of employees—should have been paid overtime but wasn’t, the employee will be owed up to two years’ worth of unpaid wages (or up to three if the misclassification was “willful”). The organization may also owe the employee or employees liquidated damages equal to the amount of money owed. So, if an employee should have been paid $2,000 in overtime, the organization may owe them $4,000. The organization would also owe the government taxes on those wages, as well as interest on the taxes.
Most states also have their own minimum wage and overtime laws, and often an organization can be held liable under both federal and state law, meaning the employee would be owed additional damages for violations of state wage law. And if you are in a state with late payment penalties, the organization could owe additional damages for not having paid all wages by the time they were due. There’s also a very good chance that the organization will be held liable for attorney’s fees—both the organization’s and the employee’s.
On top of the costs mentioned above, there are potential federal civil penalties of $2,074 per violation (generally one penalty per misclassified employee), state penalties (which will vary), and in some cases the potential for jail time. Finally, statutory interest may immediately begin to accrue on the amount owed.
Can we ask for more detail when an employee marks “personal” for the reason they’re requesting a vacation day?
You can generally ask employees to provide more information when they indicate that their vacation or PTO request is for personal reasons, but we don’t recommend it. The specific reasons for the day off shouldn’t affect whether you grant the request, and you don’t want to give the impression that you’re accepting or denying requests based on the reasons that are given. It may also be information an employee doesn’t want to share.
If the time off requested is problematic for scheduling and you’re trying to assess whether the employee could take off a different day or time (or if the company should grant the request despite the inconvenience), we recommend having a conversation with the employee rather than digging for details without telling them why you’re asking.
This advice applies only to time off that you offer as a company benefit; time off that is required by federal, state, or local law will have its own requirements about what you can or cannot ask.
An employee says that the stress of the job is affecting their mental health. How should we handle this?
This employee may just need to talk through their concerns and get your help prioritizing or delegating. They may, for example, feel like every single thing on their to-do list is life-or-death by Friday at close of business, when that’s not really the case. Some manager guidance can go a long way, especially for your employees who are usually self-directed.
On the other hand, the stress and mental health effects the employee describes may rise to the level of a disability under the Americans with Disabilities Act (ADA). In this case, we would recommend beginning the interactive process to determine what, if anything, can be done to accommodate them so that the essential functions of the job get done to your standards and the employee is able to keep working. As part of this conversation, you can request a doctor’s note to substantiate the disability.
If you have more general concerns about the effects of stress in your workplace, you might consider ways to help your employees reduce and manage their stress. Tried and true methods include offering health benefits so employees can access health care professionals and paid time off so they can take a day here and there to rest and recharge. Simply encouraging employees to support one another and allowing them breaks during the day can also be a great help.
Is it mandatory in my state to educate and provide COVID-19 workplace training to employees?
Many states have imposed regulations requiring employers to provide COVID-19 training to their employees. But not every state has. However, even when not mandated by state law, employers have the obligation under federal OSHA regulations to provide information to their employees regarding the COVID-19 pandemic and how to mitigate the spread of the virus at work.
Unfortunately, we have found no charts that outline which states require employers to provide COVID training to their employees.
Many states that require training do not implement a defined training course. Rather, each employer is required to educate and train their employees on the workplace safety protocols unique to their work environment related to the spread of the virus. The state of Virginia requires employers to do the following:
- Mandate appropriate personal protective equipment (PPE), sanitation, social distancing, infectious disease preparedness and response plans, record keeping, training, and hazard communications in workplaces across the Commonwealth.
- Ensure ready access to hand sanitizer and the regular cleaning of common workspaces.
- Require employers to train employees on COVID-19 safety and to develop infectious disease and preparedness response plans. Implementation is required of employers by March 26, 2021.
- Include guidelines for returning to work and communicating about employees who test positive and potential exposures.
Can we require an employee to show proof that they have received the vaccine outside of work?
According to the Equal Employment Opportunity Commission (EEOC), yes. Simply requiring proof of vaccination by itself does not violate either the Americans with Disabilities Act (ADA) or the Genetic Information Nondiscrimination Act (GINA).
However, employers should be aware that the ADA limits their ability to make “disability-related inquiries,” and GINA generally prohibits employers from requesting employees’ genetic information. While neither of these laws prevents employers from asking for proof of vaccination, employers are wise to explicitly tell employees not to provide related medical or genetic information as part of the proof. For example, employees should be advised not to provide their full medical history or extraneous information about their medical visit when providing proof of vaccination. See above for a sample GINA blurb.
How should we respond to a racially insensitive comment made by an employee?
A racially insensitive comment could be considered harassment — and it would be unlawful harassment if putting up with such comments became a condition of continued employment (essentially, management was unwilling to put a stop to it) or if the conduct was severe or pervasive enough to create a work environment that a reasonable person would consider hostile.
Since you have a duty as an employer to stop unlawful harassment, we recommend that you investigate the alleged comment and, if you find evidence to support that your harassment or other conduct policies have been violated, discipline the employee who made it. Make sure that the punishment fits the crime. For instance, something that was, in fact, just insensitive may warrant a verbal warning, whereas calling someone by a racial slur may warrant a final warning or even termination, depending on the circumstances. Be sure to document your findings and any disciplinary actions taken.
