Throughout the nation, public and private employers alike are instituting voluntary and mandatory vaccination policies for their employees. Many of these policies require proof of vaccination. The following blog will address the responsibilities and limitations employers face when collecting, maintaining, and using an employee’s COVID-19 vaccination records.

May Employers Collect Employee Vaccination Records?

Yes, both public and private employers are permitted to collect medical records or other information demonstrating that an employee has been fully vaccinated for COVID-19. Employers may similarly require employees sign a HIPAA authorization form to gain access to the employee’s vaccination records. Additionally, employers do not violate the Genetic Information Nondiscrimination Act (“GINA”) when they offer an incentive to employees to provide documentation or other confirmation from a third party because information regarding a person’s vaccination status does not illicit information about disease or disorder in a family member nor does it seek genetic information. As always, any vaccination policy instituted must be done in a nondiscriminatory manner where all similarly situated employees are treated similarly.

However, as with all medical information collected from an employee, the Americans with Disabilities Act (“ADA”) requires an employee’s vaccination records and other related medical documents to be stored separately from the employee’s personnel file. This separation is required to limit access to employee medical records and maintain confidentiality over such records. Thus, an employee’s vaccination records may be stored with the remainder of the employee’s medical files. If such files are stored electronically, they must be stored in a location where other, unauthorized users would not have access, like other co-workers or supervisors.

As a best practice, before collecting vaccination records, employers should notify all employees that the employer will consider requests for reasonable accommodation based on disability or religious needs on an individualized basis. Employers should also notify employees that their vaccination status will not play a role in employment-related decisions, unless the vaccination policy is mandatory. Any documents collected relating to an employee’s request for an exemption to an employer’s vaccination policy, an employee’s refusal to vaccinate, or any other related documents must similarly be kept in a confidential location.

How Should Employers Maintain Vaccination Records?

If an employer chooses to collect vaccination records, these records must be maintained in a confidential location and apart from the employee’s personnel file. Such records may be maintained with other employee medical information, such as doctor’s notes, COVID testing results, medical examinations, or requests for accommodations. These records should only be accessed by authorized personnel, which is generally limited to Human Resource staff.

Additionally, such records should be maintained in accordance with traditional local, state, and federal record keeping requirements. For instance, there is generally a requirement for private employers to retain employment records for one year from the date of the records creation or from termination, and two years for state and local governments. Thus, it is important that these traditional record keeping requirements are adhered to when maintaining employee vaccination records.

When May Employers Utilize Vaccination Records?

While employers may collect employee vaccination records in accordance with a mandatory or voluntary vaccination policy, employers are generally limited to how they may otherwise use employee vaccination records. For instance, employers are normally prohibited from using employee vaccination records to make decisions regarding promotions or pay, or when assessing discipline for unrelated matters.

However, there are several instances where employers can and should use employee vaccination records. First, employers may use such records when determining qualifications for a vaccination incentive program, or if necessary, for an employer-sponsored wellness program. Second, employers may use employee vaccination records to assess compliance with vaccination-based mask policies. While such records still must be kept confidential, authorized individuals may access such records to determine whether an employee should be wearing a mask. Third, employers may disclose an employee’s vaccination status if such information must be provided to a medical professional providing emergency treatment to the employee. Finally, employers should provide the employee with their own vaccination records if requested by the employee. An employee may request such documents because they have misplaced their copy, or to see how their records are maintained. Regardless, such vaccination records should be provided upon request.

While employers are permitted to use employee vaccination records for limited purposes, employers are entirely prohibited from requesting vaccination records from applicants. This is in line with the ADA’s general prohibition against employers requesting medical information during the application stage of the hiring process. If such information is volunteered by an applicant, an employer does not violate the ADA so long as the applicant’s vaccination status does not impact the hiring decision. However, employers are otherwise prohibited from soliciting information or records regarding an applicant’s vaccination status.  On the other hand, employers may explain their vaccination policy during the interview process and explain that employees are expected to comply with the policy.  As stated above, employers need to be aware of medical or religious exemptions requested by applicants.

The attorneys at Fishel Downey regularly advise employers on compliance with federal and state laws in the unique circumstances presented by the COVID-19 pandemic and will continue to offer up-to-date guidance. If you have a specific question or scenario, and would like assistance, contact one of the attorneys at Fishel Downey Albrecht & Riepenhoff LLP at 614-221-1216.