Karen Mandelbaum, RyAnn M. Hooper, and Susan Gross Sholinsky, attorneys in the Health Care & Life Sciences and Employment, Labor & Workforce Management practice, co-authored an article in Bender’s Labor & Employment Bulletin, titled “The Employers Guide to Privacy and Requiring Proof of Employee Vaccination.”

Following is an excerpt (see below to download the full version in PDF format):

The return to work race is well underway. While many employees grapple with their level of tolerance for a hybrid or full in-person workplace model, employers are seeking ways to entice employees back to the workplace safely. Some employers are electing a vaccination-only workforce, whether required by government mandates or not. Others are endeavoring to manage a mixed workforce of vaccinated and unvaccinated workers.

As noted above, one of the most common questions U.S. employers are pondering at the present time (beyond physical solutions for reducing the spread of COVID-19) is whether an employer can, should, or must implement a mandatory vaccine policy for returning employees. For the most part, mandatory vaccine policies are permissible and, many would argue, necessary to reduce the spread of COVID-19 in the workplace; however, implementation of a mandatory vaccine policy creates a myriad of considerations, including those around privacy and data security.

For example, once you ask an employee about their vaccination status, should (or must) the company then request proof of vaccination? Should the company request the same information from visitors, such as clients, customers, and vendors? If an employer collects vaccination records, what does the company do with the data collected? How does the company store the data? What safeguards does the company need to have in place to protect the data? Can the company share this data to make customers, visitors, and potential recruits to the business more comfortable about the safety of its work environment?

This article will explore the privacy concerns created when implementing a mandatory vaccine policy and collecting vaccination status information from employees and others.

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