The issue of personal health in the age of COVID-19 has become so politicized that it is often ill-advised to even broach the subject in ordinary conversation.
“It’s like religion or SEC sports,” as attorney Stephen Morris put it. “You can hardly talk about it.”
Many people on social media feel no such hesitation, but it can be difficult to separate opinion from fact in cyberspace.
There are legitimate questions among the general public about the COVID-19 vaccine, as government officials and the mainstream media bombard the masses with messages urging them to take a shot that has been in existence less than a year and is not even approved yet by the Food and Drug Administration. Millions of people across the country are not pleased with this, many of them proclaiming loudly that not only can they not be forced to take a vaccination, but that it is against the law for anyone to even ask them whether they have been vaccinated.
But is any of that true?
“An employer can require vaccination of employees,” said Morris, a partner in the Henry County firm of Meadows, Macie and Sutton. “That is the latest guidance from the Equal Employment Opportunity Commission to employers.”
There are exceptions. An employee might have a religious objection to all vaccinations, or a health condition that makes them ineligible for vaccination.
But this is not totally new ground. Many employers, in the healthcare field for example, require employees to get flu shots, Morris said.
A major hang-up with much of the public is their application of the Health Insurance Portability and Accountability Act (HIPAA). Signed into law in 1996, it regulates several things with regard to healthcare, and among them is the privacy of someone’s personal health information.
If you only get your information from your friends on social media, you might think that HIPAA prohibits everyone from ever asking you anything about whether you have been vaccinated. That is not true.
“Certainly an employer shouldn’t be asking during the hiring process if you’re vaccinated,” said Morris. “But once you’re employed, they can make the inquiry and require you to be vaccinated or provide some sort of explanation why you can’t be.”
If that happens, the employer has to keep the information confidential. Your boss cannot bring everyone into the break room and say, “Raise your hand if you’re vaccinated.”
Even with this kind of latitude, employers are still in a tough spot right now.
“Many of the ones who want to require it might not because the labor market is so tight,” said Morris. “Some don’t want to rock the boat and risk having employees leave for somewhere else. If you’ve gone out to a retail service establishment in the past six months, you know good help is hard to find.”
There are other things an employer must consider, and employers have to tread carefully and comply with existing laws like the Americans with Disabilities Act and Title VII or the Civil Rights Act. There are areas in which employers can get into trouble unwittingly.
Mask mandates for the public are also a consideration for a private business. Any store can require that, similar to the “no shirt, no shoes, no service” policy, and customers are free to shop elsewhere.
Merchants can also make masks optional and direct customers to shop at their own risk. Appropriate signage that alerts customers to this situation can protect them from liability should someone claim to get sick in their store, Morris said.
