Many employers are not waiting for President Joe Biden’s vaccine mandates to go into effect and are now requiring workers to get their shots. Other companies are researching and deciding how to document the vaccination status of their employees—or have already figured out that part of the pandemic equation.
A Microsoft spokesperson said they “…are requiring proof of vaccination for all employees and vendors entering Microsoft buildings in the U.S.” Last month the company activated a feature on their HealthCheck website so that all employees and vendors who enter the company’s buildings in the U.S. can upload proof they are vaccinated.
“We have an accommodation process in place for employees who have a medical condition or other protected reason, such as religion, which prevent them from getting vaccinated,” the Microsoft spokesperson said.
Neal Mills, chief medical officer and senior vice president at insurance company Aon, said, ‘’Employers are acutely aware of the anticipated vaccination mandates from OSHA….This would directly impact the thousands of employers who have already activated vaccinate mandates for their workforce.”
Mills said that, “… employers will need to ensure their vaccine verification systems are dynamic enough to contend not only with the science of the pandemic, but also evolve…with changing definitions of fully vaccinated, OSHA administration requirements, plus an exceptions process for employees with unique circumstances.
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“Digital tools will [play] an important role in establishing compliance with these vast requirements. Suffice it [to] say that these largely undefined administrative burdens are still [to] be mapped out by employers,” he said.
A Variety Of Approaches
Verbal And Written Alternatives
Kate Bally is the director of labor and employment service at Thomson Reuters Practical Law. She said although companies are taking a variety of approaches to certification of vaccination among their employees, common examples include:
- Verbal confirmation of full vaccination.
- Verbal confirmation of full vaccination plus a vaccine card/online equivalent.
- Written certification of full vaccination, confirming additional details, such as dates of vaccination, manufacturer, accommodation requests, etc.
- Written certification of full vaccination plus documentation proving they received their shots.
Mobile Phone Apps
Matthew Collins is co-chair of the labor and employment practice at Brach Eichler law firm. He noted that, “Mobile phone applications confirming vaccination status also are being developed and may be deemed acceptable documentation of vaccination status. Employers that are not subject to a legal mandate to document vaccination status may have more flexibility in what type of documentation to accept. However, it is recommended that they also obtain [other] documentation.”
Determining The Best Approach
Bally observed that, “Determining the best approach requires an understanding of context. Some U.S. states and local governments have passed laws requiring proof of vaccination for specific purposes. Employers are waiting to hear more about the Biden Administration’s requirements with hope that this patchwork of mandates and prohibitions becomes simpler. Although that should clarify matters, no one will be surprised to see legal challenges [arise].”
Darlene Clabaultis is a senior editor for the human resources team at J. J. Keller & Associates. She noted that, “Some employers may not be documenting it at all, others may be using a simple checkmark next to the employee’s name after reviewing vaccine documentation, some may be asking employees to complete a survey (self-attestation), while others may be requiring employees to provide vaccine documentation and making copies of it.
“For the latter, the vaccine information is to be kept confidential and separate from the general personnel files per the Americans with Disabilities Act. According to an Equal Employment Opportunity Commission representative, if employers mandate that employees display their vaccination status (e.g., pin, bracelet sticker on badge), employees may file a claim regarding such confidentiality,” she said.
Clabaultis warned that, “Not collecting vaccine documentation will reduce the requirement to keep vaccine documentation confidential and might increase trust. Not collecting it might, however, make it more challenging to ensure that employees who don’t provide documentation are truly vaccinated and, therefore, know who might need a booster to remain fully vaccinated in the future.”
Advice For Business Leaders
Be Aware Of Laws
Collins of Brach Eichler said, “As employers collect documentation regarding employee vaccination status, they need to be aware that applicable law may not only require that they maintain records of employee vaccination status, but in some cases they may be required to report vaccination data to public health departments or other government agencies,” Collins said.
“Under the ADA an employee’s vaccination status is considered medical information and, like all other types of employee medical information, employers are required to keep the employee’s vaccination status confidential and must store that information separately from the employee’s personnel files,” Collins noted.
Collins recommended that, “Employers should implement policies to [ensure] that documentation and information regarding vaccination status is being collected, stored and, if applicable, reported in a manner that complies with their various obligations under federal, state and local law.”
Look Out For Forged Documents
“Unfortunately, with some employees facing termination if they are not vaccinated, employers also need to be mindful of the possibility that employees might submit fraudulent or forged vaccination documentation. In fact, criminal charges recently were filed against a woman in New Jersey who allegedly sold hundreds of fake COVID-19 vaccination cards,” Collins observed.
Paul Lopez is a labor and employment attorney with Tripp Scott. He counseled that:
- “If an employer is requiring proof of vaccination and/or eliciting information from its employees about their vaccination status, the employer should limit the number of people who control access to the information and set up security measures to safeguard the information.”
- “If the information is being kept in files, those files should be secured and segregated in a way that makes access to them available to only a few key employees.”
- “If the information relating to employees’ vaccination status is uploaded into the employer’s computer network, the employer should likewise protect [this] information through encryption and/or password protection that allows only a limited number of key personnel to have access to that information.”