Yes, you may ask employees about COVID-19 vaccinations

Q         Can we ask employees if they have received the COVID-19 vaccine?

A   Yes. In short, employers may ask employees to tell (and show proof) whether they have been vaccinated.

In December 2020, the Equal Employment Opportunity Commission (EEOC) issued updated guidance confirming that asking an employee to show proof of receiving a COVID-19 vaccination isn’t a disability-related inquiry under the Americans with Disabilities Act (ADA). According to the agency, many reasons that may or may not be disability-related could explain why an employee hasn’t been vaccinated.

Therefore, simply asking employees if they’ve received the COVID-19 vaccine or requesting proof isn’t likely to elicit information about a disability. In other words, you can ask employees whether they’ve gotten the shots without having to demonstrate business necessity under the ADA.

Moreover, asking employees if they have received the COVID-19 vaccine isn’t a Health Insurance Portability and Accountability Act (HIPAA) violation. After all, HIPAA prevents healthcare providers from sharing information. Asking employees to share their own information doesn’t violate the Act.

Be careful with follow-up questions. Subsequent questions, such as asking why an individual didn’t receive a vaccination, may elicit information about a disability and could trigger your obligation under the ADA to justify that the information being sought is “job-related and consistent with business necessity.”