Contrary to assertions floating around the social media ether, employers have a right to ask about the COVID-19 vaccination status of their employees.
It is neither unprecedented nor illegal, regardless of how much people, often egged on by armchair lawyers, want to believe otherwise.
The U.S. Equal Employment Opportunity Commission has allowed companies to mandate the flu and other vaccines and also has indicated employers can require COVID-19 vaccinations.
And the commission in late May released updated guidance further clarifying that not only could employers ask workers about their vaccine status, but they also can require proof of vaccination and offer incentives to employees to get the shot.
Anyone who subsists on a steady diet of social media and conspiracy theories, unfortified by reality, might believe this popular claim making the rounds: “The Fourth Amendment of the U.S. Constitution and Title III of the U.S. Civil Rights Act prohibit businesses from asking people for proof of vaccination.”
That claim was that the Fourth Amendment protects individuals against businesses asking about vaccinations because it protects “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures,” according to The Associated Press, which set out to provide legal clarity about the claim.
Legal experts point out that amendment refers specifically to searches and seizures by the government, not by private entities, according to The AP.
“The Fourth Amendment only applies to governmental searches and seizures and certainly not to businesses asking for proof of vaccination, Lawrence Gostin, a law professor at Georgetown University who specializes in public health law, told The AP.
Other social media posts have suggested the 1964 Civil Rights Acts, which prohibits discrimination based on race, color, religion, sex or national origin, protects individuals from being asked about vaccination status.
“Businesses do have special considerations around discrimination outlined in the Americans with Disabilities Act and the Civil Rights Act, but these would not preclude a company from asking a customer or employee about vaccination status,” The AP reported.
Although people can request exemptions for medical or religious reasons, asking someone to show proof of a COVID-19 vaccination wouldn’t be a disability-related inquiry, according to the EEOC.
“Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry,” the commission said.
Anyone seeking an exception based on religious beliefs or for health reasons also must consider that businesses can make such accommodations by requiring unvaccinated employees to wear masks, work at a social distance from coworkers, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework or accept a reassignment, according to EEOC guidance.
And finally, some anti-vaxxers have trotted out HIPAA, or the Health Insurance Portability and Accountability Act of 1996. But HIPAA doesn’t cover such things as asking about COVID-19 vaccinations.
HIPAA is a specific federal law, often misunderstood, that “required the creation of national standards to protect sensitive patient health information from being disclosed without the patient’s consent or knowledge.”
The notion that HIPAA prevents an employer from asking about vaccination status is “simply untrue,” Robert Gatter, a professor with the Center for Health Law Studies at St. Louis University School of Law, told The Washington Post.
Citing HIPAA as a reason to not disclose vaccination status is often a “knee-jerk reaction” that “quickly gets turned into a statement that sounds like law,” Gatter said. People sometimes say, “‘But I have a right not to be asked that question,’ and it’s just not the case,” Gatter said.
The federal law protects against a person’s identifying health information being shared without the person’s knowledge or consent. But the law only applies to specific health-related entities, such as insurance providers, health care clearinghouses, health care providers and their business associates, according to Gatter and other legal experts.
“It’s not really a prohibition on asking; it’s a prohibition against sharing,” Kayte Spector-Bagdady, an associate director at the Center for Bioethics and Social Sciences in Medicine at the University of Michigan, told The Washington Post.
“The law doesn’t mean you never have to tell anyone about your health information,” she said.
What it all comes down to is this: Employees have a right to refuse vaccination against COVID-19, and unless they fall under religious or health exceptions, an employer has a right to sever ties with those employees.
Most businesses across Galveston County are incentivizing, rather than requiring employees to be vaccinated against COVID-19. That’s their right. But if they choose to require the vaccination for the safety of their workplaces and customers, that’s their right, too.
• Laura Elder