Unfortunately, we’re not out of the woods. With the delta variant of COVID-19 surging and vaccination hesitancy causing many to refrain from getting vaccinated, states continue to modify their pandemic laws and regulations. This has left employers wondering whether they can still ask employees whether they have been vaccinated. So, this week, I’m answering: Can employers still ask employees whether they have been vaccinated?
In most states, yes. However, there are exceptions of which employers should be aware, particularly those with national footprints. Montana has adopted a law that prohibits discrimination on the basis of COVID-19 vaccination status. Montana’s law does not prohibit an employer from asking employees whether they have been vaccinated but restricts an employer from using that information to refuse to hire an individual, prevent an employee from working or terminate an employee. So, it’s best not to ask. In addition, Oregon prevents a health care provider employer from requiring an employee to get a vaccination. However, somewhat counterintuitively, Oregon also mandates that businesses inquire about vaccination statuses before relaxing masking requirements.
Conversely, several states and localities, including Washington State and Santa Clara, California, require employers to determine the vaccination status of their employees. For example, as of June 1, 2021, Santa Clara requires employers to ascertain the vaccination status of all employees and keep records of the same.
Finally, some states have prohibited vaccination passports, but the restriction does not prevent private employers from asking their employees about their vaccination status and/or requiring employees to get vaccinated. For example, in Florida, a private business may not require vaccination proof from customers. However, this does not extend to the employment context. Meaning, private employers in Florida may inquire about their employees’ vaccination statuses but may not require their customers provide vaccination verification.
An employer’s best practice here is to consider your objective first, and then how to tailor it for legal compliance. For example, if you want to simply encourage vaccination, you can do that in every state, versus mandating vaccines where you’ll have to be careful in a couple of jurisdictions. Importantly, prior to issuing or modifying any policies, ensure that you are up to date on the laws in the jurisdictions where you operate. Simply, employers need trusted counsel who is following state and local laws to provide real time guidance.
If you have any questions regarding this post or any Labor & Employment issues please do not hesitate to reach out. You can also visit my blog, Batista‘s Best Practices, for all my blogs, upcoming and previous event recordings.
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ABOUT KATHARINE BATISTA
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Ms. Batista is an employment & labor attorney who provides businesses with advice and risk mitigation strategies, and zealous representation in litigation. She frequently represents businesses in the hospitality, financial services, automotive dealership, engineering and architecture and healthcare industries. Specifically, Ms. Batista successfully defends employers against claims of discrimination and harassment, retaliation, wrongful termination, and wage and hour violations. Ms. Batista also commonly represents her clients in actions involving employee mobility and trade secret theft. Employment and labor law is ever-changing. Employers need to feel secure in how they manage their employees so they can focus on their business. Ms. Batista affords her clients that security.
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