Collecting Employee Vaccination Status Can Create Challenges for Employers
While we are turning the corner on the pandemic, California employers still face challenges navigating the complex health and workplace rules pertaining to COVID-19. Compliance issues remain for employers that are now collecting information on the vaccination status of their employees.
Storing Vaccination Status Information
Employee medical information must be stored separately. The law is not well developed yet, but COVID-19 vaccine status information may be considered medical information by the courts. There is currently no case law on this point.
Federal and state law require that all medical information be kept separate from the employee’s general personnel file. That means that COVID-19 vaccine information should not be stored in the same physical or electronic file as the employee's more traditional personnel and/or payroll records.
Per the DFEH Guidance, Vaccine Status Shall Be Treated As Confidential "Medical "Information
While the current DFEH guidance recognizes that "simply asking employees or applicants for proof of vaccination is not a disability-related inquiry, religious-creed related inquiry, or a medical examination," the DFEH provides that "any record of the employee must be maintained as a confidential medical record." Based on this, written and electronic records pertaining to employee vaccinations for California employees should be maintained as confidential, separate from an employee's personnel file.
Tips for Compliance
Employers should be aware of how their HR Department and managers are storing vaccine status information obtained from their employees and ensure they are protecting the privacy of such information. It is a best practice to keep such information separate from traditional non-medical personnel records.
If vaccination status if stored electronically, employers should make certain to password protect this information and limit access to only those who are expressly authorized to view it, such as human resources. In addition, this information should be stored in separate electronic files from the traditional non-medical personnel records.
Lawsuits related to vaccine mandates, paid time off for vaccinations, and many other vaccine-related issues will be on the rise in 2021 and 2022. It is important to make sure that the custodians of this information in your organization are properly storing this information and keeping it confidential and complying with applicable laws.
If you have questions or need assistance with assessing whether to mandate or incentivize vaccinations in your workplace, drafting a vaccination policy, or how to ensure compliance with recordkeeping requirements, feel free to contact the attorneys at CDF Labor Law LLP.