How to Require Proof of Employee Vaccinations

Now that the Pfizer vaccination has cleared FDA approval, students are returning to campuses, and businesses are in various stages of returning to in-person work, requiring proof of vaccination has become a hot topic. Most recently, President Joe Biden has announced the requirement that all employers with 100 or more employees will need to ensure their staff is fully vaccinated, or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before returning to workplaces.

While it makes sense to ensure that you’re providing a safe workplace by requiring and documenting proof of vaccination correctly and within the law, how exactly to go about doing that is less than clear for many.

If you’re looking for guidance or ideas on how to require proof of employee vaccinations in a fair and appropriate way, here’s a crash course on what to consider.

1. Know the law

There are all kinds of misconceptions out there about what is and isn’t legal when it comes to employee vaccinations — from businesses asking employees about their vaccination status to how they can require it.

The Health Insurance Portability and Accountability Act (HIPAA) establishes national standards to protect individuals’ medical records and other personal health information. According to the Department of Health and Human Services, in general, “HIPAA rules do not apply to employers or employment records. HIPAA only applies to covered entities — health care providers, health plans, and health care clearinghouses — and, to some extent, their business associates.

Further, according to the Equal Employment Opportunity Commission, federal EEO laws “do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodations provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations.”

This means that as long as you’re providing reasonable accommodations for employees who, for example, cannot get vaccinated because of a disability or their sincerely held religious beliefs and the like, that you’re well within your rights as an employer to require that your workers get vaccinated.

As long as you’re providing reasonable accommodations for employees who, for example, cannot get vaccinated because of a disability or their sincerely held religious beliefs and the like, that you’re well within your rights as an employer to require that your workers get vaccinated.

2. Come up with a vaccination plan that works for your business

Not all companies are the same, from the work that they do to the offices they work out of. Some have cafeterias and other common spaces while others are simply a string of cubicles or closed door offices.

As an employer with less than 100 employees, it will be up to you whether or not you want to require vaccinations and in what ways you want to apply the requirement. For employers with 100 or more employees, you will have to comply with Biden’s vaccine mandate in requiring staff vaccinations or negative test results.

Some businesses are requiring that vaccinated employees have access to common social spaces, while unvaccinated don’t. Others are requiring it for a subset of their employees — perhaps ones that have to be in person — while others are requiring it for all of their workers.

3. Decide how you’ll verify vaccination statuses

This is the biggest hurdle that employers from private businesses to major public universities are wrestling with: the process by which they’ll require proof of vaccination.

You can accomplish this in a variety of ways, all of which have pros and cons to them. One of the easiest ways for companies to handle vaccination requirements is to have employees declare they are vaccinated. This is, however, a problem in the sense that it relies on the honesty of people rather than verifiable proof of vaccination.

Then there’s the option of requiring proof of vaccination in the form of a vaccination card. Vaccination cards are medical information and therefore must be confidential. Larger schools or companies are opting for requiring individuals to upload vaccination cards for verification, but that naturally comes with digital security risks.

Whichever way you go, the important thing is to ensure that employees’ vaccine information is available only to designated employees: generally HR professionals and business owners.

Another option that could work better for smaller businesses is requiring that workers show their physical vaccination card (or perhaps a photo of it). Of course there are drawbacks to that as well, since asking someone to tote what has become an important document around could be cause for concern for some.

Whichever way you go, the important thing is to ensure that employees’ vaccine information is available only to designated employees: generally HR professionals and business owners.

4. Put the necessary administrative resources in place

Decide on your vaccination requirement policy, and how you’re going to verify the vaccination status of your workers. Then, set up a system to capture the information you’re requiring.

If you’re going to ask employees to upload a photo of their vaccination cards to a digital system, you’ll need to be sure that you have a system in place that can both handle the volume of uploads and securely store them.

If you go the physical proof route, you’ll need to come up with a way to document who has and hasn’t provided proof of their vaccination, as well as a method for sharing it with relevant parties (basically just supervisors).

Across the board, ensuring that the information you collect is secure and that you keep it private is the top concern when it comes to remaining in compliance with the law.

Last, it will serve you well to stay up to date with the latest news about vaccination requirements and proof when it comes to employment. The central tenet that employers can require proof of vaccination against COVID-19 is unlikely to change. However, it never hurts to stay on top of things to keep that worrisome risk of falling out of compliance at bay.