June 16, 2021

Volume XI, Number 167

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Vaccine Tracking Your Employees – It’s Past Time

With about half of the U.S. working age, vaccine-eligible population now vaccinated, employers want to know which of their employees got the shot.  Many employers are under the impression that mandatory vaccine reporting and tracking is only possible when the employer mandates vaccination.  Not true.  Vaccine tracking is permissible under federal law regardless of whether your vaccine policy is mandatory or voluntary—and its relevance is now front and center.  (In fact – perhaps in response to the federal position - several states have proposed, but have not yet enacted, bans on private employers requiring proof of employee vaccination status.)  The issue certainly falls in the Pandora’s box category.  Here is a look inside:

Mandatory Reporting: 

  • By Paper Copy.  Employers may require employees to submit documentation of vaccination, whether they did so voluntarily or pursuant to a mandatory policy.  Most people receive physical CDC vaccination cards post-vaccination, and a copy of this is by far the most common form of documentation.  Employees can also turn in a copy of a printout (or print screen) of their vaccination record from the provider.

  • Via Apps.  There are also a number of apps that can be used to track vaccination status – as shown in these search results. For travel, we may all wind up using “Vaccine Passport” apps such as CommonPass or VeriFLY, which the airlines appear to be adopting

Confidentiality: 

  • Like Usual.  Vaccine status information should be treated confidentially and separately filed, like any other employee medical record, per EEOC guidance.  And employees should be instructed not to provide other medical information with their vaccine status.  (The CDC vaccine card does not include protected medical information, aside from vaccination dates, and the vaccine manufacturer dosage lot.  Other information there, such as birthdate, is already known to employers.) 

  • Don’t Ask for More.  Vaccine status should not be the beginning of a conversation about why and when some employees were vaccinated or not, or why they got one vaccine and not another.  Questioning employees about vaccination decisions is kosher only in a limited context—accommodation of disabilities and religious observance.

  • Apps Can Help.  Where apps boast of HIPAA compliance, that’s not the issue for most private employers.  The ADA (rather than HIPAA), is the privacy compliance point for most employers to watch.  The best apps will allow for employers to access vaccine (and test) status while maintaining the information in separate, secure electronic files. 

Veracity Concerns: 

The veracity of employee vaccine reporting is a concern; for example, the CDC card is easily forged.  There are a few choices here: 

  • Trust.  Assume that the vast majority of employees will not lie about their status.  Experience suggests that this is right.

  • Have Them Sign It.  Have employees complete confidential heath assessment questionnaires with a verification signature block.

  • Rely on Third Parties.  Rely on apps that only populate by pulling the information from the medical provider (where HIPAA compliance does matter), with no allowance for the employee to fill in the status information without making clear that it’s their own manual entry.

Reporting Compliance: 

  • Some are Reluctant.  Many employees are reluctant to report their vaccine status, even if they have been vaccinated.  Perhaps they are concerned that when the employer learns of the fact and effective date of their status, their past work productivity will be questioned, or their future work demands will rise. 

  • Promise a Policy Purpose.  This can be addressed, for example, by assuring employees that the information will not be used for those purposes, but only as it speaks to the company’s prospective social distancing, travel and meeting policies. 

  • Give Reporting Incentives.  Perhaps more practically, the problem can be addressed with low-level monetary incentives (gift cards, logo coffee mugs, or other swag) for employees who timely submit their information.  Incentives are not just for getting the vaccine.

  • Apps Can Help Here as Well.  Or again, with a well-done (and legally compliant) app that all employees are required to use, the information should flow more automatically.

The culture is emerging from the pandemic and, as we hope to maintain momentum in the face of new viral mutations, employers should not fly blind about the vaccine status of their people.

© 2021 Foley & Lardner LLPNational Law Review, Volume XI, Number 159
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About this Author

Kenneth Broodo, Foley Lardner Law Firm, Dallas, Labor and Employment Litigation Law Attorney
Partner

Labor law attorney Kenny Broodo is board certified by the Texas Board of Legal Specialization and represents management in diverse markets such as small business, energy, technology, manufacturing, insurance, retail, wholesale, service, sales and marketing, private schools and universities, medical, entertainment, automobile sales and food. He also represents executives in contract negotiations and disputes. Kenny is especially adept at helping small to mid-size businesses maximize the opportunity to achieve employee stability and productivity, while avoiding employment...

214-999-4626
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