Q: Can we legally ask employees if they have received a COVID-19 vaccine as part of our health screening protocols when someone reports a positive case or close contact exposure to the virus?
A: Yes, you can inquire about employees’ vaccination status, but the employee can choose not to provide an answer. Importantly, a public school district cannot require proof of vaccination status (e.g., vaccine card), nor can the district require or mandate vaccines for employees.
Governor Abbott’s Executive Order (GA-38) issued July 29, 2021, addresses the topic of vaccines, providing that “no governmental entity can compel any individual to receive a COVID-19 vaccine administered under an emergency use authorization.” Currently, all COVID-19 vaccinations are being administered under emergency use authorizations, as no vaccine has been given full FDA approval; therefore, no COVID-19 vaccine can be required by governmental entities. The Executive Order also states that political subdivisions, including school districts, “shall not adopt or enforce any order, ordinance, policy, regulation, rule, or similar measure that requires an individual to provide, as a condition of receiving any service or entering any place, documentation regarding the individual’s vaccination status for any COVID-l9 vaccine administered under an emergency use authorization.” Executive Order GA-38 expressly supersedes any other orders from local governments or health agencies.
While we know that current state law (via the Executive Order) prohibits requiring proof of vaccination status, there is currently no state or federal law limiting an employer’s right to ask employees for their vaccination status on a voluntary basis. Many districts have expressed concerns with HIPAA compliance; however, HIPPA does not apply to schools, nor would it apply to a situation in which an employee’s health information is being sought voluntarily.
Should you elect to inquire about your employees’ vaccination status, it is recommended that you do so through a secure method that provides the option to decline the question (i.e., “Prefer not to disclose”). A clear statement in the survey clarifying that the inquiry is voluntary, and all information provided will be kept confidential is also prudent to alleviate concerns of hesitant employees. If you are currently considering a close contact policy for staff, which treats vaccinated and unvaccinated employees differently for purposes of required quarantines, dialogue with your school’s legal counsel is recommended, as guidance and legal authority on staff quarantine is rapidly evolving.
If you are currently considering offering a vaccine “incentive” program to staff members, be aware that the EEOC has approved such programs so long as they are not “so substantial as to be coercive.” The EEOC has not provided any factual scenarios that might meet the “coercive” standard; however, as a general matter, the more financially attractive an incentive the more likely it is to be considered coercive. That is, unvaccinated employees may feel as though the financial incentive is so great that the employees had no choice but to get vaccinated. Likewise, be careful of incentives that – by their very nature – reveal the vaccination status of employees so as to avoid any coercive “stigma.” Examples of this might include visual representations (t-shirts, hats, etc.), the opportunity to divert from usual policies, or events for vaccinated people where unvaccinated employees will not be invited. As you develop your incentive program and implementing regulations, you should dialogue with your legal counsel to provide further analysis on the “coercive” standard provided by the EEOC in light of your desired incentives.
Finally, should you determine that your district will ask vaccine status of employees for incentive, or other purposes as discussed above, note that the EEOC, in its June 2021 guidance on vaccines, emphasized that any information on an employee’s vaccination status is generally considered “confidential” health information and should be treated as confidential and stored separately from the employee’s regular personnel file. Thus, it is recommended that the district develop a secure records retention process for vaccine status responses should you ask this question of your staff.