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

 Laura Elder: 409-683-5248; laura.elder@galvnews.com.

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(18) comments

Robert Braeking

The number of nurses that left Methodist will put the hospital in a world of hurt when it comes to replacing them. And I don't blame them. They know the science. They have been infected and recovered so they don't need the vaccine, in fact, they are better immune. The vaccine has unknown side effects. When it is not necessary, don't take it. The street runs in both directions.

Jim Forsythe

The University of Pennsylvania Health System will require all 44,000 employees and clinical staff to be vaccinated. Almost 70% are already vaccinated, the hospital system said. And the University of Maryland Medical System announced the requirement Wednesday for its 29,000 employees.

Indiana University Health announced last week that it would require its 36,000 employees to be vaccinated:

Hundreds of colleges and universities are requiring vaccinations, as are many nursing homes

Bailey Jones

I believe I heard the head of Houston Methodist Hospital say that 99%+ of his employees had been vaccinated. It was only 178 who chose not to.

Jake Swanson

Wayne Holt, It's HIPAA not HIPPA. HIPPA was invented by people on the internet during the COVID-19 pandemic and is not a real law.

Robert Braeking

Health Insurance Portability and Accountability Act - 1996

Norman Pappous

What I am more concerned about is if school districts begin to mandate the vaccine. Currently they mandate a handful of vaccines (Polio, chickenpox, mumps, measles etc) before any student may be admitted but those vaccines are FDA approved. The Pfizer/Moderna/J&J Covid-19 vaccines are not. Those vaccines are approved under an emergency use authorization (EUA). https://www.fda.gov/vaccines-blood-biologics/vaccines/emergency-use-authorization-vaccines-explained

Gary Scoggin

If school districts don’t require vaccinations what measures if any should they require in their place? Should there be special policies for immuno compromised children?

Carlos Ponce

SCIENCE tells us unless there are pre-existing medical conditions this virus has little effect on children, and is not life threatening. The numbers show children who died with the virus not "from" the virus.

As far as "immuno compromised children" there should be no policy other than what the child's health care provider says.

Norman Pappous

@Gary - absolutely. There should be a review of all policies to ensure health safety. I have no problems with FDA-approved vaccines. I have problems with unapproved vaccines.

Wayne D Holt

And this is the crux of the argument, presented here instead as poorly reasoned 4th Amendment and HIPPA objections. Much more likely will be lawsuits of institutions that have mandated the shot(s) should it be conclusively shown these mRNA shots are causing injuries and death; that proof will be forthcoming soon, I am sure. Thousands of adverse reactions never seen in vaccination campaigns before aren't a conspiracy theory, no matter what MSM or the vaccine makers shout.

Didn't the government remove liability for injury and death claims? They did for the manufacturers, I would be very skeptical that an employer or educational institution that forced you to take the shot to stay employed or enrolled would be protected. Wrongful death suits may be on the way for anyone who forced an UNAPPROVED, EXPERIMENTAL vaccine on someone to retain their employment or educational plans and that person died from it. Especially when no one is going to be able to come up with anything like unassailable proof that this is safe or effective. By definition, they can't: that's why it's authorized, not approved. It will take one multi-million dollar jury award in such a case to get the attention of all those who think they can turn a blind eye to the adverse reaction reports with impunity.

Dan Freeman

In April of 2021, we learned children make of 21% of new COVID-19 cases. At least 297 children had died of COVID-19. It is not reported whether they had co-existing conditions. https://www.aappublications.org/news/2021/04/19/pediatric-covid-cases-041921

Whether they had a pre-existing condition or not is irrelevant, COVID-19 shortened at least 300 young lives. Their lives were lost because of vaccine resistant individuals.

Carlos Ponce

"75% of youths who died from COVID-19 had underlying health conditions" Sept. 15, 2020

https://www.upi.com/Health_News/2020/09/15/75-of-youths-who-died-from-COVID-19-had-underlying-health-conditions/1781600190309/

"Three-quarters of the children who died had an underlying condition that made them more vulnerable to complications from the coronavirus. The most common underlying conditions were asthma, obesity and cardiac issues. Seventy percent of those who died were between the ages of 10 and 20. Only 10% were infants younger than 1."

https://www.npr.org/sections/coronavirus-live-updates/2020/09/16/913365560/the-majority-of-children-who-die-from-covid-19-are-children-of-color

"A study of 48 children in intensive care with the coronavirus found 18 needed ventilators. Most had underlying conditions."

https://www.businessinsider.com/study-children-hospitalized-with-covid-19-18-needed-ventilators-2020-5?op=1

"A total of 45 children died from the coronavirus in the United States between February 1 and August 1 -- compared to 105 who died from seasonal flu -- out of a total of 13,000 children who died of all of causes over the period.

When they do catch the virus, children are far less likely than adults to fall seriously ill.

An informative study of 2,143 confirmed or suspected cases of coronavirus among children in China found 94 percent of cases were asymptomatic, mild or moderate.

Those children who do fall ill often have underlying conditions. A study found all 10 pediatric patients who were hospitalized in Chicago in March and April with COVID-19 had either pre-existing conditions or co-infections."

https://news.yahoo.com/know-far-covid-19-children-191547714.html

Wayne D Holt

The CDC has already identified nearly 300 young males who are likely suffering from vaccine-induced myocarditis and pericarditis. That is out of thousands more who are also potential victims.

They will have health issues for the rest of their lives--some will die--because of these medical experiments conducted by Big Pharma to expand their Big Profits down to ages 3-5.

This insane drive to inject everyone world-wide with this mystery elixir is hitting a wall; all those who want the shots have had them, for the most part. Those remaining want none of this business.

I suggest a commonsense retreat from the, "We're all in this together even if we have to fire you, ruin your educational plans and ultimately physically hold you down to inject you" approach. The mRNA True Believers are not going to like the blow-back from this if it goes much further.

Robert Braeking

It is becoming clear that if you want grand children don't vaccinate your children. The girls will develop ovarian problems and the boys will have heart attacks.

Ted Gillis

One of the nightly comedians stated it this way.

“Here I’ve done all of the right things, followed all the required social distancing and self quarantined myself for the last 15 months, now here I am feeling the first soft touch of a woman’s hand upon my bare arm......and then......ouch! she sticks me with a sharp needle.

Raymond Lewis

Good and informative piece Laura. It would be even better if folks paid attention to what you wrote. Someone speculated that Memorial-Hermann would have trouble replacing the non-vaccinated staff; I doubt seriously if that be the case.

Robert Braeking

I have no doubts that the hospital HR department will have to pay more for replacements.......and they are hard to find. At least if you want same quality. Perhaps if you played bass you would understand.

Ted Gillis

I think they speculated about Houston Methodist, not Memorial Hermann. Two different animals with similar colored stripes.

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