Member Article

The worst of the Covid-19 pandemic appears to be behind us and companies everywhere are developing their return to work plans.

As states look to reopen (many, like Oregon, are already open, and others are in the process of reopening), employers must make decisions about vaccination and masking requirements that comply with federal, state, and local laws. Even after states reopen, some employers may determine that they will nevertheless address vaccination status, and/or require masks to provide a safer workplace environment.

Here are six important considerations for employers with respect to collecting and securing an employee’s vaccination status as part of the return to work plan.

1. Can employers legally collect their employees’ vaccination status? The Equal Employment Opportunity Commission , the federal agency that administers the Americans with Disabilities Act, has issued guidelines that cover the pandemic, return to work, and vaccines. These guidelines are a great place to start when preparing your return to work plan. The EEOC guidelines confirm that employers may legally collect their employees’ vaccination status, but if they do so, employers must protect confidentiality of the information. This means ensuring that the information is kept in a secured, locked physical or virtual file.
   
   
2. Who will/should have access to the vaccine status information? Just as with any confidential medical information, employers should restrict access to vaccine status information to a small control group, such as human resources.
   
   
3. If employers collect vaccine status information what will they do with it? Employers should keep vaccine status information in a secure physical or digital file that is separate from the employee’s personnel file.
   
   
4. How will you secure the information? How long will the information be kept? As employers secure the information in a locked physical or digital file, they should plan to keep the information until the state, local, and federal authorities entirely lift mask and social distancing requirements for all individuals.
   
   
5. Can you disclose vaccine status to customers or employees? The EEOC guidelines are clear that confirmation of an employee’s vaccination status is confidential information under the ADA. As such, an employer may not take actions to disclose an employee’s vaccination status to other employees or customers. Although requiring unvaccinated individuals to wear masks may provide some indication of vaccinated status, we can expect that vaccinated individuals may also continue to wear masks, and therefore, that will not necessarily disclose a person’s vaccination status. Still, it is important that employers provide information, and/or training to employees about respecting each individual’s personal decision about vaccination and refraining from actions that could be considered retaliatory or discriminatory. Employers should also refrain from actions that might otherwise disclose an individual’s vaccination status in the workplace.
   
   
6. Should you provide guidance to employees on disclosing vaccine status to each other or customers? Yes, as part of the return to work planning, employers should provide guidance or training to employees about returning to work in a post Covid environment. This training should include discussions about disclosing vaccine status to others.
   
   

Employees should not ask others about their vaccine status, however, employees may freely disclose their status to others.

Examples of topics to cover in a guidance includes preparing psychologically to return to the workplace, continued requirements for social distancing, handwashing, cleaning, and other actions that can protect employees from illness. The guidance could also include new rules around staying home if an employee is ill, or wearing a mask after returning from an illness, rules around having visitors in your workplace and considerations around visiting client workplaces.

As the vaccination numbers climb we are moving closer and closer to a new normal. Having a solid return to workplace plan in place, and guidance for employees who are returning is necessary to a smooth transition. Understanding the rules around vaccination status and what you can and cannot do is part of the planning to a new normal.

A version of this article was originally published in the Portland Business Journal.