Compliance News | October 1, 2021
The Biden administration has undertaken a series of initiatives to increase the number of vaccinated Americans, including requiring federal workers and federal contractors to be vaccinated, ordering the Occupational Safety and Health Administration to issue guidance for vaccination requirements by private employers with over 100 employees and calling on large entertainment venues to require proof of vaccination. HHS has now issued guidance under HIPAA’s Privacy Rule clarifying how those initiatives apply when employers ask customers or clients about their vaccination status.
The guidance does not establish any new principles with respect to HIPAA, but it does provide helpful information and examples clarifying that HIPAA’s privacy rules are not a barrier to an employer that would like to establish a vaccination requirement for its employees and customers.
The guidance restates an established principle: that HIPAA’s privacy rule only applies to covered entities, including health plans, certain healthcare providers and healthcare clearinghouses and their business associates. The HIPAA Privacy Rule does not apply to employers or employment records.
The guidance states that HIPAA does not prohibit anyone, including a HIPAA covered entity or business associate, from asking whether an individual has received a particular vaccine, including COVID-19 vaccines. It does regulate how and when a covered entity or its business associate may use or disclose information about an individual’s vaccination status. Consequently, nothing in HIPAA’s Privacy Rule prohibits employers from requiring an employee to disclose whether they have been vaccinated and provide documentation of this requirement. Documentation of vaccination and other records must be kept confidential under the Americans with Disabilities Act.
The Privacy Rule also does not prohibit an employer from requiring an employee to wear a mask or sign a HIPAA authorization permitting a provider to disclose the employee’s vaccination status to their employer.
These rules complement guidance issued by the Equal Employment Opportunity Commission (EEOC) in May 2021 concerning vaccine requirements for employers. The EEOC guidance addresses certain issues relating to vaccines.
The Biden administration is likely to continue to publish guidance concerning the application of existing laws and regulations to COVID-19 vaccination policies.
This page is for informational purposes only and does not constitute legal, tax or investment advice. You are encouraged to discuss the issues raised here with your legal, tax and other advisors before determining how the issues apply to your specific situations.
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