Read This Before You Use HIPAA As an Excuse to Complain About Vaccine Requirements

That’s where the Americans with Disabilities Act (ADA) comes in, which is intended to protect people with disabilities from discrimination in the workplace and other areas of life. For something like a COVID-19 vaccination to be a condition of employment, under ADA requirements, it must be job-related and consistent with business necessities, Mariner explains. In many situations “there’s no question” that a vaccine requirement would meet those guidelines, such as in a hospital setting or at universities where people typically interact with each other in close contact. Even large private companies have started to require that people get vaccinated to return to the office.

In order to implement a vaccine requirement, employers inherently need to be able to ask employees about their vaccination status. In fact, the Equal Employment Opportunity Commission (EEOC) recently released guidelines clarifying that it is not a violation of the ADA to ask employees about COVID-19 vaccinations—as long as a few other requirements are met. For one thing, in accordance with the ADA, the employer must not “single anyone out,” Dr. Lam says. They can’t just ask one person because they’re curious; there needs to be a specific job-related reason for them to know and they have to ask everyone to whom that applies.

Additionally, employers can’t require people to get the vaccine if it’s contraindicated for them (due to an allergy, for instance), Mariner says. And if someone isn’t vaccinated, the employer can’t ask why not because that may be unintentionally asking someone to disclose disability-related information, which is generally prohibited under the ADA. So the employee may need to be up-front and ask for an exemption to the vaccine rule. (However, at that point, the employer is entitled to ask on what grounds the employee is asking for an exemption, Mariner says.)

The EEOC also requires employers to provide reasonable alternatives to vaccination, such as frequent COVID-19 testing and mask use, for those who can’t or don’t want to get vaccinated because of a “sincerely held religious belief, practice, or observance” unless doing so would present an “undue hardship” on the business’s operations.

But ultimately, there’s no regulation that prohibits employers from asking employees if they’re vaccinated or asking them to provide proof of that—especially if the employer has good reason to make vaccination a condition of employment.

When it comes to local governments, like NYC, requiring vaccinations to enter businesses, that’s all down to “the state’s power to regulate businesses and their own population, which they can do,” Mariner says. “They have the power to protect public health, safety, and welfare as long as the regulations are reasonable and related, and [a vaccine requirement] certainly is.” In fact, the 10th Amendment protects a state’s “police powers,” which grant the state authority to enact measures of self-preservation, including those related to public health.

Basic practices in epidemiology, including collecting questionnaires related to an outbreak, instituting a recall of an affected product, and even quarantining people exposed to a pathogen are generally protected during an outbreak under police powers, the Centers for Disease Control and Prevention explains (CDC). And when it comes specifically to vaccine mandates there is legal precedent: In the 1905 Supreme Court case Jacobson vs. Massachusetts, the court upheld the local health department’s decision to institute a smallpox vaccine requirement. More recently, a local judge upheld New York City’s pediatric MMR vaccine requirement amid a measles outbreak in 2019.

“Even without a state law, private businesses could [require vaccines for customers] themselves,” Mariner says. Businesses have quite a bit of room to refuse service to people, as long as they aren’t discriminating against people based on things like race, sex, or religion (which is prohibited by the Civil Rights Act). But according to the recent ruling in the Supreme Court case Masterpiece Cakeshop vs. Colorado, which upheld a cakeshop owner’s refusal to make a wedding cake for a gay couple, a business owner’s personal beliefs can carry quite a bit of weight.

Your medical information is, ultimately, still yours. And you have control over who gets it.

All of that said, it is completely understandable to be uneasy about providing medical information like this in everyday life. If that’s the case, take some comfort in knowing there are many regulations out there designed to keep your information safe. For instance, the ADA requires that medical information (like vaccination status) be stored separately from the rest of an employee’s personnel file to help keep that information confidential.

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