Be Wary of Disclosing Employees’ COVID-19 Vaccination Status

Kollman & Saucier
Kollman & Saucier

As vaccines are being administered throughout the country, the end to the COVID-19 pandemic is in sight.  As a result, many employers are wondering what information can be shared regarding employees’ vaccination status. The answer is, or at least the cautionary one is, not much.

Employers are facing inquiries regarding their employees’ vaccination status.  Customers and clients would like to know if the employee they are working with is vaccinated, and thus less likely to expose them to the virus.  In schools, parents may be interested in knowing if their child’s teacher is vaccinated.  Restaurants and hotels may want to disclose the fact that their staff are vaccinated to calm customers, who by the nature of the business are in close contact with employees.  Office workers want to know if their coworkers have been vaccinated.  However, while these scenarios are all seemingly innocuous, disclosure could violate the Americans with Disability Act (ADA).

Information regarding the medical condition or history of an employee is considered confidential under the ADA.[1]  Any employee medical information the employer holds is required to be housed separate from an employee file, and access limited to only certain individuals, such as a supervisor, safety personnel or government investigators.[2]   The Equal Employment Opportunity Commission (EEOC), the government agency tasked with enforcing the ADA, likewise affords protections to medical information and designates it as confidential and restricted in access.[3]  Several states and local jurisdictions have enacted their own confidentiality laws. 

Whether or not the fact that an employee was vaccinated or not is “medical information” under the ADA is debatable.  In December 2020, the EEOC updated its guidance related to the COVID -19 pandemic.[4]   The EEOC explicitly stated that COVID -19 vaccinations, in and of themselves, are neither medical examinations or inquiries.[5]  However, the guidance is silent on whether the fact that an individual was vaccinated constitutes confidential medical information.  Applying a general definition to the terms, an employee’s vaccination status would likely be considered either medical information or medical history.  Accordingly, an employer should keep this information in confidence.

By the nature of the ADA, and its limits on to whom medical information can be disclosed, employers also risk violating the law if they treat those who are vaccinated differently than those who are not.  For example, if an employer only assigns vaccinated workers to a certain shift or work area, the practice may run afoul with prohibitions on disclosing medical information by way of inadvertently designating which employees have, and which have not been vaccinated.  Additionally, employers could potentially violate the ADA if they treat an employee who cannot be vaccinated (for various reasons to include disability) differently.

So how should employers respond to the question of whether or not an employee has been vaccinated? Sometimes the non-answer is just as helpful as the answer.  Simply stating that the employer “has a policy requiring all employees to be vaccinated subject to the provisions of the ADA” provides a full disclosure that should be compliant with the laws while affording employees their privacy.

[1] 42 U.S.C. § 12112 (d)(3)-(4).

[2] 29 CFR § 1630.14(c)

[3] EEOC, Title I Technical Procedures Manual, §§ 6.5 – 6.6 (January 1, 1992).

[4] EEOC, What You Should Know About COVID 19 and the ADA, the Rehabilitation Act, and Other EEO Laws, (Dec. 16, 2020).

[5] Id. § A. Disability-Related Inquiries and Medical Exams

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