SAN DIEGO (KGTV) — As California prepares to end its mask mandate next month, a lot of people are wondering what businesses can ask about your vaccine status.
Experts say there are different legal considerations involving employees and customers, but in general, businesses can ask if you received the COVID-19 vaccine.
The U.S Equal Employment Opportunity Commission released updated guidance Friday further clarifying that not only can employers ask workers about their vaccine status, they can require proof of vaccination and offer incentives to employees to get the shot.
Once employers gather that information, they must keep it confidential from others.
Businesses can also impose a vaccine mandate on employees, but they must try to accommodate workers who claim a medical or religious exemption.
Such accommodations might include requiring unvaccinated employees to wear masks, work at a social distance from coworkers, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or accept a reassignment, the EEOC guidance said.
The EEOC sidestepped the question of whether employers could impose a mandate immediately, while the vaccines only have an emergency use authorization, or whether they must wait until the vaccines have full approval from the Food and Drug Administration.
“It is beyond the EEOC’s jurisdiction to discuss the legal implications of EUA or the FDA approach,” the guidance states.
If a worker informs an employer they have not been vaccinated, businesses can ask some follow up questions to determine if they have a legitimate exemption. But attorney Richard Barton, a health law expert and University of San Diego adjunct professor, said employers should proceed with caution.
“My advice is be really careful about how much information you ask,” he said. “You can ask them for the specific medical exemption. What you can’t do is go on a fishing expedition.”
Employers must ensure their questions are job related. “If they’re asking for information which is not relevant to the job that’s being performed, or is relevant to their particular business, then they’re going to get themselves into trouble legally,” he said.
What about customers?
On social media, some influencers and Rep. Marjorie Taylor Greene (R-GA) have claimed it is illegal for businesses to ask about your vaccine status because of the Health Insurance Portability and Accountability Act, or HIPAA.
“An employer who is not a healthcare institution isn’t governed by the laws of HIPAA,” said attorney Richard Barton, a health law expert and University of San Diego adjunct professor.
HIPAA only applies to a specific list of health-related entities like hospitals and health insurance companies; it doesn’t apply to the retail shop or music venue asking for your vaccine card, he said.
However, there are other laws that govern the interactions between businesses and their customers. Businesses cannot, for example, discriminate against a customer on the basis of a disability under the Americans with Disabilities Act.
In general, experts say businesses can ask about your vaccine status and ask for documentation. But venues and shops cannot flatly turn people away either who refuse to show a vaccine card, Barton said.
“You’re going to have to be able to accommodate people who don’t have vaccines, but you’re going to have to do it in a way where you’re not discriminating” against someone who has a disability, he said.
Businesses might have to offer those customers other options — what the law calls “reasonable accommodations” — like requiring them to wear masks or delivering products to them outdoors.
A Republican state lawmaker has introduced a bill that would make it illegal for a California business to require customers to show proof of vaccination before serving them.
That bill has not yet come up for a vote.