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.
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.
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.
Unless an employee was out on job-protected leave, such as FMLA or EFMLA, you are not required to return them to their original position or to an equivalent one (or bring them back at all). Given the impact of COVID-19 on business operations across the country, it’s not surprising that organizations may need to restructure their teams to stay afloat or remain competitive. That said, if employees who were furloughed or laid off are asked to come back to a job that feels to them like a demotion, they may be less inclined to accept the offer or may be less engaged in the new role than they were in their previous job.
If you need to restructure their position, it will be helpful to explain why that was necessary. People are generally much more accepting of change if they understand it, and less likely to claim discrimination if you’ve given them your business-related reason for the decision.
