As more offices open up, more companies are seeking to keep their workforce safe. A vaccination policy, discussed in our previous blog post about return-to-work policies, is one piece of that process. However, no matter what policies a company has decided to adopt, there are important considerations in how to handle employee or visitor information that is collected while enacting any COVID-related policy, and what sorts of information are off-limits to collect.
Asking for proof of vaccination
EEOC guidance states that employers are within their rights to ask for proof of vaccination – but requesting the reason someone is not vaccinated is not permissible. Asking “why” could lead to a conversation about health conditions or disabilities of the employees, and this can run afoul of the Americans with Disabilities Act (ADA) or other similar state and local laws.
On the other hand, asking why an employee was not at work or for documentation of vaccination are not disability-related inquiries according to the EEOC. Keep in mind, however, that any documentation or records of vaccination status must be kept strictly confidential and stored separately from the employee’s personnel files under the ADA.
Requiring a screening questionnaire
Some companies may want to require the completion of a screening questionnaire for all employees and visitors before entering their business. Generally, asking questions related to symptoms is allowed as long as there is only a binary (yes or no) choice. The survey or questionnaire should never invite an explanation from the individual.
Additionally, it is helpful to include a statement on the survey that says that the individual should not provide any medical or genetic information in response to the inquiry and should only select yes or no for each question.
If the employer wants to include a vaccination status question on the survey, this is permissible as well, provided there is no space for explanation. This sort of questionnaire might be a simple list of statuses (i.e., vaccinated, unvaccinated with intent to vaccinate in future, partially vaccinated, unvaccinated with no intent to vaccinate) and the individual can choose one option without any additional explanation.
As with vaccination documentation, be careful if retaining or storing these questionnaires. Companies should consider their record retention policies and whether a specific policy to destroy screening forms is warranted since storing the questionnaire means storing personal medical information.
If an employer insists on keeping this type of questionnaire on file for employees, then it needs to be kept confidential and separate and apart from the employee’s personnel file in compliance with the ADA.
Reporting COVID cases in the workforce
OSHA requires reporting of COVID cases that are work-related. This means events or exposures in the workplace: (a) caused the illness; (b) contributed to the illness; or (c) significantly aggravated a preexisting illness.
The employer should make a good faith determination of whether the case is work-related. If OSHA later challenges a case that the employer stated was not work-related, then OSHA will have the burden of showing that it was.
It is also essential to never retaliate against an employee for reporting an infection or exposure to COVID. Retaliation would likely disincentivize people from reporting symptoms, exposure, or testing results. Protect the information and anonymity of individuals when it comes to vaccination status or whether someone has tested positive for COVID and make sure to abide by all ADA requirements and guidelines.
