Return-to-Office Vaccine Requirements and HIPAA Compliance

Brooke Penrose

Nearly two years since many professionals gathered in-person and on-site, the prospect of return-to-office en mass is picking up pace.

The U.S. Bureau of Labor Statistics reports that the percentage of people telecommuting due to the pandemic dropped from 23.2% in January of 2021 to 13.4% in August of 2021. While this trend is met with mixed emotions by some, there is broad consensus that in-person gatherings, including return-to-office initiatives, are planned with the safety of all individuals in mind.

Given the rapidly evolving landscape surrounding COVID, a popular safeguard employers consider is requiring employees to provide proof of vaccination status before physically returning to the office. Any request for employee health records rightfully raises concerns about privacy and the legality – to request.

In most cases, businesses requesting an employee provide proof of vaccination will not violate the Health Insurance Portability and Accountability Act of 1996 (HIPAA), but requiring the employer-provided insurance policy to confirm status may-. In general, HIPAA only applies to a patient’s healthcare providers, healthcare clearinghouse, and insurance companies (called “covered entities”) and the businesses that process patient health information on behalf of covered entities (called “business associate”). If an employee directly provides their health record to their employer, HIPAA should not be triggered because the insurance company is not involved in the exchange.

Employers who choose to collect employee vaccination records should be mindful that they may have obligations under the Americans with Disabilities Act to individuals who are unvaccinated because of a disability or a sincerely held religious belief, practice, or observance.

While Occupational Safety and Health Administration (OSHA) withdrew the previously planned employee vaccine-or-test mandate for businesses with 100 or more, in late 2021, businesses should continue to monitor OSHA guidelines on return-to-office safeguard requirements.

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