COLUMBUS (WCMH) — It’s a question many employers are grappling with as they aim to bring workers back into the office safely, while still protecting privacy and obeying the law:
Can I ask employees if they’ve been vaccinated for COVID-19?
According to labor attorney Leigh Anne Williams, an employer can legally ask if you’ve had your vaccine, but that doesn’t mean they need to.
“It’s really up to the employer to decide what makes the most sense for their workplace culture, their business and their facility, and how closely people work together,” Williams said.
NBC4 Investigates checked with cities around Ohio to see if they keep track of employees’ vaccination status. Columbus, Delaware, Dublin, Hilliard and Upper Arlington do not. Neither do Cincinnati, Toledo nor Dayton.
Some local cities cited privacy concerns as their reason for not asking employees their vaccination status.
In Columbus, knowing whether an employee has been vaccinated will not impact workplace decisions, said Nichole Brandon, the city’s human resources director.
“We still require a mask, we still require the social distancing, and we still provide all of the other personal protective items that are necessary to keep the employees and the public safe,” she said.
Brandon added that city hall will continue to follow reopening guidance from Columbus Public Health and the Centers for Disease Control and Prevention while encouraging employees to get vaccinated. Cincinnati and Dayton, for example, also encourage vaccinations.
Williams pointed to guidance from the Equal Employment Opportunity Commission (EEOC) stating that a vaccination is not considered a medical evaluation and therefore is not private medical information. However, reasons for not getting vaccinated might be protected under anti-discrimination laws like the Americans with Disabilities Act (ADA).
She advises employers not to ask why an employee has not gotten vaccinated or declined to answer.
“What I typically suggest is just ask whether they’re vaccinated — yes or no — and then leave it at that,” Williams said. “It could be a good employment practice, just giving people the time and space that they need to get where they need to be from a health standpoint and a personal decision standpoint. And that might take some time.”
EEOC guidance also says employers can require workers to get vaccinated. However, if you have a medical condition that prevents you from getting a vaccine, your employer must still prove that you pose a direct threat to your coworkers because you are unvaccinated.
Even then, the ADA requires your employer to reasonably accommodate you so you can safely do your job.
Ben Orner contributed to this story.