Q&A: Questions you can ask about vaccination status

Lora Patterson, HR Advisor at Zenefits
Sep 9, 2021

With the COVID-19 Delta variant still running rampant, many employers want to know whether or not employees are vaccinated. But what can and can’t you ask about an employee’s vaccination status? In this episode of POPS!, Zenefits HR advisor Lora Patterson shares the answer and the risks you need to know before asking. After you […]

With the COVID-19 Delta variant still running rampant, many employers want to know whether or not employees are vaccinated. But what can and can’t you ask about an employee’s vaccination status?

In this episode of POPS!, Zenefits HR advisor Lora Patterson shares the answer and the risks you need to know before asking.

After you listen:

Ask a SMB Workplace Question and get featured on POPS! The People Ops podcast.

On this episode, you’ll hear: 

  • [00:34-01:03] Can you ask employees if they’ve been vaccinated for COVID-19?
  • [01:03-01:54] Questions to avoid, according to the law
  • [01:54-02:34] What to keep in mind when asking for vaccine documentation
  • [02:34-03:20] Risks to be aware of when asking about vaccination
  • [03:20-05:17] How to maintain confidentiality around vaccination status

POPS Star Bio

Lora Patterson is an HR Advisor at Zenefits, where she advises clients on a broad range of human resources issues including employment laws and regulations, management practices, policies and procedures, and best practices regarding people management, development, and engagement. She lives in Phoenix, Arizona.

Transcript

Lora: What questions can employers ask about an employee’s vaccine status?

Didi: Welcome to POPS, the show that shows you how to shift from human resources, paperwork to people, operations for the new world of work by answering one question at a time. Today, to help us answer your question. Here’s Lora Patterson, HR Advisor at Zenefits. 

Lora: So let’s get the big question out of the way. Can you ask your employees to disclose if they’ve been vaccinated? Well, the equal employment opportunity commission. Which is the federal agency that enforces employment non-discrimination laws has stating that asking about a vaccine status or even asking for documentation doesn’t violate federal equal employment opportunity loss, which means employers are at Liberty to ask employees.

If they’ve been vaccinated on the federal level, while employers can ask about vaccine status, they are being cautioned to not ask any sort of follow-up questions, especially if the answer is no. Asking additional questions around why someone chose to not get the vaccine. Could potentially reveal medical disability or even religious information, which is all protected under federal law.

Let’s take the Americans with disabilities act. For example, the ADA prohibits employers from making medical inquiries that could identify or even disclose a disability. So asking questions around why someone didn’t get the shot could bring up information protected under ADA, according to the EOC. Those questions would then be subject to the ADA’s requirements that inquiries around disabilities be job-related and consistent with business necessity.

Also keep in mind that if you do ask about vaccine status and you request that employees provide vaccination. You’ll also want to be sure that employees do not provide any medical information as part of that proof in order to avoid running a foul the ADA. So what I’ve typically seen is that employers will ask for the bare minimum when it comes to supporting documents, I’ve even seen employers rely on a simple yes or no survey response, but please know a serving may not be right.

When it comes to certain state mandates that require employers to physically check documentation. So please review those requirements. As you can see, there are risks involved around asking employees if they’ve been vaccinated, some of those risks involved federal, perhaps even state law, and some of them may just make your employees uncomfort.

Which is why I would caution employers against asking about vaccines. If they don’t plan on one, mandating the vaccines too. If they’re not subject to a state or industry specific mandate or three, they don’t plan on creating a policy that has different requirements for vaccinated and unvaccinated workers.

Basically, if you don’t need to know this information, I would recommend not asking as always, I would highly recommend looking at your local laws before implementing any sort of policy around vaccines to ensure you are compliant. The next thing I want to talk about is how to maintain confidentiality.

So the EOC explained that any sort of documentation or other confirmation that employees provide a bathroom vaccine status is considered medical information and it has to be kept confidential. So if an employer does require proof of vaccination, they should control access to that information and limit its use.

They should also let employees know that records around vaccine status need to be strictly confidential. Additionally, you’re going to want to refrain from telling anyone in the office. Who has, or has not been vaccinated unless there is a legitimate business reason to do. So. An example might be, if you have a policy around who can be in the main area, working with customers and who needs to work in the office, then you’ll want to let your supervisors know.

So they know how to plan out their employees schedules and who should be working in which areas, but they only need to know the information. Who needs to be in public and who should be behind the scenes that supervisor would then want to refrain from asking employees why they chose to not get the vaccine or even encouraging them to get it.

They really shouldn’t be having those conversations with employees. Another thing to look out for is you’re going to want to avoid. Providing any sort of badges or risk brands or any physical verification of a vaccine status to employees, this would objectively require employees to disclose their own personal medical information.

And that really shouldn’t be part of your policy. If an employee chooses to disclose this information, it should be up to them and it should never be a requirement under a company policy. Well, employers are allowed to ask about vaccination status. The rules around vaccination, mandates and inquiries are changing on a state and federal.

So be sure you’re keeping up with the rules that apply to your company.

Didi: Do you have a question for our experts? Click the link in the show notes, or if you’ve got other ideas and feedback about our show, send them to [email protected]

 

Previous Episodes

How and Why Small Business Can Close the Gender Pay Gap

Tracy Cote, People Ops Advisor to Zenefits
Mar 17, 2021
What practices should businesses be putting in place to ensure every employee is compensated fairly? In this PIVOT episode, Zenefits’ own Chief People Officer Tracy Cote draws upon 20 years of HR experience to share fair pay best practices. She discusses common missteps businesses make when it comes to determining salaries, and how to create...

Q&A: Part 1: Building Better Engagement

Danny Speros, Director of People Ops, Zenefits
Jul 13, 2021
With just 4 in 10 employees reporting being “actively engaged” and turnover rates at a 20-year high, employee engagement is top-of-mind for businesses of all sizes right now. We’re tackling the big topic of building better engagement across a 4-part series—starting today.  In Part 1, Zenefits VP of People Ops Danny Speros discusses how to...

Q&A: Part 4: Building Better Engagement

Danny Speros, Director of People Ops, Zenefits
Aug 26, 2021
Employee recognition is one of the most critical factors of employee engagement, but over half of employees say their manager doesn’t provide enough praise for a job well done.

About The People Ops Podcast

Every week, we share the decisions, struggles, and successes for keeping up with an evolving workforce and a changing workplace. No matter if you’ve been in HR or are just getting started, this combination of transformational stories with actionable ideas, as well as context on hot issues, keeps you up-to-date while answering the questions you didn’t even know you had.

Oh, and you know what they say about all work and no play? We tossed in a little levity to keep it real. Lessons, answers, and humor: everywhere you listen to podcasts.

Best-in-class remote teams will use best-in-class technology.

Zenefits mobile HR platform makes it easier to communicate with staff, onboarding new hires, pay employees, and manage any HR task from any home office.