Proof of Vaccination is Confidential Medical Information

As reported in a past blog the EEOC issued a slew of guidance about what employers can do when it comes to the COVID-19 vaccine. This blog focuses on the specific question of whether information relating to the COVID vaccine is confidential medical information.

IS INFORMATION ABOUT AN EMPLOYEE’S COVID-19 VACCINATION CONSIDERED CONFIDENTIAL MEDICAL INFORMATION?

YES. Documentation and information relating to an employee’s COVID-19 vaccination status is considered Confidential Medical Information. This means that any documentation relating to vaccination must be kept confidential and stored separately from the employee’s personnel file.

This position is a change from the initial guidance in December. As you recall, in December the EEOC made it clear that requesting proof of vaccination status is not a “disability related inquiry” (DRI) under the Americans with Disabilities Act (ADA). The EEOC was clear that simply asking an employee for proof of vaccination status was not itself a DRI. That still stands as true today.

However, in December it followed that an employee’s response to the “vaccination status question” would not elicit confidential medical information, thus triggering the ADA. In other words, in December, when an employee would inform the employer of their vaccination status and submit proof of vaccination, this was not considered confidential health information. In December, employers did not have to treat a vaccination card or the information that someone is vaccinated as confidential.

…As of May 28, 2021, the EEOC is instructing employers to act a bit differently…

The EEOC now says that while employers have every right to ask employees whether they have been vaccinated, the information elicited from that inquiry must be treated as confidential and stored in accordance with the ADA. Admittedly, this is a bit confusing. So while asking an employee to submit proof of vaccination is not a DRI, it still elicits confidential medical information.

BOTTOM LINE:

  • Employers can ask employees whether they have been vaccinated.

  • Employers can request/mandate submission of proof of vaccination.

  • Employer must ensure that the following is kept confidential: (1) vaccination status of the employee, and (2) documentation of vaccination.

    • NOTE: Proof of vaccination/documentation supporting same is considered confidential medical information that must be stored separate and apart from the employee’s personnel file.

Susie Cirilli