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“HIPAA governs doctors, hospitals, companies like that,” said Matthew Kugler, associate professor of law at Northwestern University. “If your restaurant says, ‘Hey, show me your medical record,’ that’s something they can say. You don’t have to say ‘yes,’ like you can be like, ‘No, screw you, I’ll go elsewhere.’ But it isn’t a HIPAA problem for them to ask to see it. It’s only a HIPAA problem if they break into your doctor’s office and steal it.”
So far, many big box stores are relying on an honor system for customers, asking that those who are unvaccinated continue masking, but some businesses are requiring those who wish to go maskless to show proof of vaccination.
“In general, people are required to make reasonable accommodations for things,” Kugler said. “So, that is why if you show up at a store and say, ‘I want to go in,’ and they say, ‘Are you vaccinated?’ and you say, ‘No,’ they’re like, ‘Oh here’s your mask ‘ – that’s a reasonable accommodation. I have difficulty seeing how asking someone to wear a mask would give grounds for a lawsuit.”
The rules are similar when it comes to employers, but certain issues could arise when it comes to the Americans With Disabilities Act and anti-religious discrimination laws, Kugler said.
According to December guidance from the;Equal Employment Opportunity Commission, asking an employee to show proof of vaccination would not violate the ADA. Asking for reasons why someone isn’t vaccinated could pose a problem, however.
Compliance With Other Federal State And International Laws
The Equal Employment Opportunity Commission recently issued advice for employers to help avoid any potential violations of anti-discrimination laws, such as the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act . The EEOC confirmed theres no indication that theres any federal law that would be violated by the employer asking this question.
While employers can ask the question about whether an employee has been vaccinated, care should be taken when asking follow-up questions, such as why an employee has not been vaccinated. There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related.;Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.
However, continued the EEOC subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be job-related and consistent with business necessity. The same advice can also relate to state laws such as California´s Privacy Rights Act and to international privacy laws such as the EU´s General Data Protection Regulation .
Time Off For Vaccination
Do we have to allow employees time off during working hours to receive a vaccination?
There is no general right in law for an employee to have time off for medical appointments, but we expect most employers will allow time off for Covid vaccinations and there are many cogent reasons to do so:
- Contracts and policies may include rights around attending medical appointments.
- Employees who are clinically vulnerable may be classed as disabled under the EqA and allowing time off for vaccination could be regarded as a reasonable adjustment.
- Employers have a legal obligation to provide a safe place of work and minimise risks for all employees. This could include enabling vaccination to take place.
- An unreasonable refusal to allow time off for vaccination amid a global pandemic could be a breach of trust and confidence, which could prompt constructive dismissal claims.
- Employment law issues aside, there could be negative PR implications from refusing to allow staff to attend vaccination appointments.
There is no legal requirement for employees to be paid for time off, although there are calls for this right to be introduced. In practice, many employers will allow paid time off for medical appointments. Some employers may wish to offer paid time off as an incentive .
Can we ask employees to change their appointment to a more convenient time?
What if the employee feels unwell after getting the vaccine?
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Can My Employer Ask Pre
The EEOC has stated that administering the COVID-19 vaccine to employees or requiring proof of vaccination from employees does not implicate Title II of the Genetic Information Nondiscrimination Act . However, as stated above, pre-vaccination medical screening questions are likely to elicit information about not only a persons disabilities, but also their genetic information, such as family members medical histories, which would violate GINA.;
GINA does not prohibit an individuals own health care provider from asking questions about genetic information, but does prohibit an employer or a health care professional working for the employer from asking questions about genetic information.
Employers Can Legally Require Covid Vaccinesbut Will They
As COVID-19 vaccines are approved and begin to roll out across the country, employers are asking one question: Shouldand couldwe make the vaccine mandatory for employees?
The bottom line is that employers can require employees to get immunized with the coronavirus vaccine, with some accommodation exceptions. In new guidance released last week, the Employment Opportunity Commission said employers can require that employees get vaccinated as a condition of going to work. However, they must be prepared to exempt employees with disabilities and religious objections. In those cases, an employer must offer a reasonable accommodation to the employeesuch as working remotely or being reassignedas long as the accommodation doesnt cause undue hardship for the employer.
They have to check with their state and deal with the accommodation issues, but in broad terms, yes, employers can mandate it, says Shannon Farmer, a labor and employment lawyer at Philadelphia-based Ballard Spahr who is advising employers on the COVID vaccine.
So employers can legally mandate the new vaccinationsbut will they? And should they? Experts say that depends.
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Q: Do Employees Have To Be Paid If A Business Temporarily Shuts Down Due To Covid
In general, hourly employees do not have to be paid when they do not work. There are a few very specific exceptions that are beyond the scope of this FAQ. Consult an attorney if you need more detailed answers. We encourage employers to allow employees to use earned sick time in these situations.; If employees are asked to stay home, they may apply for unemployment.;
For salaried employees who are EAP exempt from overtime requirements:
- If the business shuts down for an entire week: no pay is required provided the employee has not performed ANY work during that week.
- If the business shuts down for only part of the week: full pay is required. The employer may require employees to use vacation or other paid time off for the part of the week the business is closed for an entire day to ensure full weekly salary. See also COVID-19 or Other Public Health Emergencies and the Fair Labor Standards Act Questions and Answers, United States Department of Labor, available at
- Salaried employees paid on a fluctuating work week basis generally must be paid their full guaranteed salary when they have performed work during that week.
Isnt This A Hipaa Violation
The Health Insurance Portability and Accountability Act has protections for patients confidential health information, but it covers what your health care provider can share with others, rather than employers and what they can ask for.
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Could An Employee Be Terminated For Refusing To Have A Covid
Being terminated for not having the vaccine is a possibility in some states, but employees could potentially take legal action against their employer for wrongful termination. The Food and Drug Administration fast-tracked the approval process for COVID-19 vaccines through an Emergency Use Authorization , otherwise approval of live-saving vaccines would have been delayed.
The EUA requires a drug or vaccine to be accompanied with information for individuals about their right to refuse and to be told about the consequences of such a refusal. The wording of the EUA in this case could be interpreted in different ways, and wrongful termination lawsuits based on the refusal to be vaccinated are a possibility although yet to be tested in the courts.
There is also an issue that could arise if a substantial portion of the workforce refuses the vaccine. An employer would then have to decide whether to terminate all of those employees or none at all. If only certain employees were to be terminated for refusing the vaccine on non-medical or non-religious ground, there could well be valid claims that individuals have been discriminated against.
Q: Can I Apply For Unemployment Insurance Benefits If Im Out Of Work Due To Covid
Employees have a right to apply for unemployment insurance benefits if they are discharged or if they are partially unemployed*. They cannot be forced to use their earned sick time before applying for unemployment. Most employees who are out of work due to COVID-19 should be eligible for unemployment insurance benefits.;
Please visit this website;for the latest information, or contact the DUA at 877-626-6800.
*If an employees hours or earnings have been reduced by more than 1/3, they may be eligible to collect unemployment benefits.
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How Long Does Unemployment Insurance Last
Eligible employees can receive up to 26 weeks worth of regular state unemployment insurance and, depending on the unemployment rate, Extended Benefits may be available for an additional 13 or 20 weeks. Federal Pandemic Emergency Unemployment Compensation is a temporary program that provides up to 13 additional weeks of benefits to individuals who have exhausted all rights to regular unemployment insurance compensation with respect to a benefit year that ended on or after July 1, 2019. Pandemic Unemployment Assistance is available for up to 39 weeks for individuals whose unemployment is attributable to COVID-19 and who are not eligible for other unemployment benefits.
Vaccine Requirement More Likely In Health Care Other High
The industry most likely to require COVID-19 vaccinations for workers is health care, where most employers already require workers to get a flu shot annually. In fact, interim guidance from the Centers for Disease Control and Prevention on which groups might be among the first to have access to a coronavirus vaccine placed healthcare personnel likely to be exposed to or treat people with COVID-19 at the top of the list.
But once enough doses of a vaccine have been produced for distribution to the broader public, some employers might start to consider a mandate.
“For example, essential workers in retail stores or in food production plants, such as a meat-packing plant, seem to be at high risk, Reiss says. Those employers could reasonably require , because remember, if an employee doesn’t vaccinate, it’s not just a risk to them. It’s a risk to other employees, and if it’s a customer-facing business a risk to the customers. So, in high-risk places, I think it’s reasonable.”
Some companies may make inoculation voluntary but make it as easy as possible for workers to get the shot. For instance, Ford already has purchased twelve of the ultracold freezers required to store doses of Pfizers vaccine so it can provide the shot to employees who want it.
For those workers who might be told to get a vaccination, remember to raise any concerns you might have with your employer.
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If My Information Is Protected By The Privacy Act What Are My Employers Obligations In Respect Of My Information
;If the employee records exemption does not apply to you, your employer must accurately record your vaccination status information and ensure that it is complete and kept up-to-date. You must be provided with an opportunity to access your information and request correction if the information is inaccurate. Your employer must have appropriate security systems to protect your vaccination status information from misuse, interference, loss, unauthorised access, modification or disclosure. ;Your employer should also limit the use and disclosure of your vaccination status information to the purpose for which they advised you it has been collected. Finally, your employer should destroy this information when it is no longer required. More information about these obligations is available here.
Minimum Workplace Safety Requirements
Employers are required to follow the Governors Executive Orders. The Illinois Department of Public Health and Illinois Department of Commerce and Economic Opportunity have also published guidelines and requirements for employers to follow in order to maintain a safe workplace during the pandemic. All employers are required to:
- Continue to evaluate which employees are able to work from home and are encouraged to facilitate remote work when possible;
- Ensure that employees practice social distancing and wear face coverings when social distancing is not always possible. Employers should provide face coverings at no charge to employees who are not able to maintain a minimum 6-foot social distance at all times;
- Ensure that all spaces where employees may gather, including locker rooms and lunchrooms, allow for social distancing;
- Ensure that all visitors to the workplace can practice social distancing. When maintaining a 6-foot social distance may not always be possible, visitors should be encouraged to wear face coverings; and
- Prominently post the guidance from IDPH and the Office of the Illinois Attorney General regarding workplace safety during the COVID-19 emergency.
DCEO has provided additional COVID-19 guidance for businesses, workers and residents on its website, .
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Protections From Discrimination And Harassment
Under the Illinois Human Rights Act , employees are protected from discrimination and harassment in their employment for reasons including, but not limited to, their actual or perceived disability, age, race, or national origin. The Illinois Department of Human Rights investigates charges of discrimination, harassment, and retaliation filed under the IHRA. To begin the process of filing a charge, individuals should complete and submit the Complainant Information Sheet located on IDHRs website.
Employers may not require employees to disclose if they are at higher risk for COVID- 19 or have a health condition. However, if possible, they must try to make reasonable accommodations for an employee who requests one. Requests for accommodations should be evaluated and resolved on a case-by-case basis.
All workplace safety policies, including required face coverings, must be applied and enforced equally for all employees in the workplace, except for those employees who have informed the employer of a medical condition or disability that prevents them from safely wearing a face covering. Further guidance concerning the use of face coverings is available on IDHRs website.
Federal employment laws, including Title VII of the Civil Rights Act of 1964 , the Americans with Disabilities Act , and the Age Discrimination in Employment Act , also protect employees from discrimination and harassment. Guidance regarding the ADA and the COVID-19 pandemic issued by the EEOC is available here.
If An Employee Has An Underlying Health Condition That Puts Them At Higher Risk Is Their Employer Required To Allow Them To Work From Home
Working from home may be a reasonable accommodation under some circumstances. Other potential accommodations could include moving the employees workstation to a less crowded or better ventilated area or re-examining job duties to minimize interaction with other coworkers or members of the public. Under the IHRA and federal law, an individual with a disability has the right to request a reasonable accommodation from their employer. If an employee has a disability that affects the employees risk of contracting COVID-19 or increases the harm if the employee does contract the virus, they should request a reasonable accommodation from their employer. The employer should discuss the request with the employee to determine whether the requested accommodation, or another accommodation, can be provided. An employer is not required to provide an accommodation that would be prohibitively expensive or unduly disruptive to the business.
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Hipaa And Proof Of Vaccine Status
Vaccination information is classed as PHI and is covered by the HIPAA Rules. However, HIPAA only applies to HIPAA-covered entities healthcare providers, health plans, and healthcare clearinghouses and their business associates. If an employer asks an employee to provide proof that they have been vaccinated in order to allow that individual to work without wearing a facemask, that is not a HIPAA violation as HIPAA does not apply to most employers.
It would not be a HIPAA violation for an employer to ask an employees healthcare provider for proof of vaccination. It would however be a HIPAA violation for the employees healthcare provider to disclose that information to the employer unless the individual had provided authorization to do so. If an employer is running their own vaccination program and an employee chooses to have their vaccine privately, that individual may have to authorize their healthcare provider to disclose certain information about their vaccine to their employer as proof that they have been vaccinated.
Asking about vaccine status would not violate HIPAA but it is possible that other laws could be violated. For instance, requiring employees to disclose additional health information such as the reason why they are not vaccinated could potentially violate federal laws. Furthermore, several states have passed laws or are considering laws that prohibit employers in the public sector from asking employees about their vaccine status.