“We are seeing more and more policies for employees who have been fully vaccinated and policies for employees who have not been,” said Erin McLaughlin, labor and employment attorney at Buchanan, Ingersoll & Rooney.
Generally, employers can mandate that workers be vaccinated. But federal laws may require companies to provide exemptions or reasonable accommodations to workers who aren’t vaccinated due to a disability or religious belief.
The Equal Employment Opportunity Commission, the federal agency that enforces employment non-discrimination laws, said that asking about vaccine status or documentation doesn’t violate federal equal employment opportunity laws.
But any documentation that an employer keeps regarding vaccination status should remain confidential.
“If you are going to ask for a [vaccination] card and make a copy of it, maintain that information as you maintain other medical information,” said McLaughlin.
Some employers may choose to just ask employees their vaccination status and rely on the honor system, rather than ask for documentation.
“In some respects, you don’t even necessarily need to require that documentation. You could simply have the employee represent to you that they have in fact been vaccinated,” said McLaughlin. “We rely upon our employees to be trustworthy and act in good faith in compliance with our policies.”
When asking about vaccination status, attorneys advised employers to limit the inquiry — especially if the answer is ‘no.’
“Generally speaking, the impulse is going to be to ask why,” said Stephen Riga, an attorney at Ogletree Deakins in Indianapolis. “A response that is involved there is potentially fraught, legally.”
Asking questions about why someone didn’t get the shot could reveal medical, disability or religious information that are protected under federal laws.
“The employer can’t ask why aren’t you vaccinated because the EEOC has said you can’t,” said Patricia Pryor, co-leader of the National Advice and Counsel Practice Group of employment law firm Jackson Lewis in Cincinnati. “The ADA prohibits employers from making medical inquiries that could identify or disclose a disability. So you can’t ask the why because it’s possible that type of question could impact the ADA.”
McLaughlin said that employers who don’t plan on mandating vaccines or who don’t plan to put in place different policies for vaccinated and unvaccinated workers, likely don’t need to know a worker’s shot status.
“Don’t ask for information you don’t need,” she said.
State laws could be more limiting in what employers can do.
“A handful of states have passed restrictions on the ability to ask or use status of vaccination in certain circumstances,” said Riga.
Even though they can ask, should they?
Companies should be aware of the impact that asking about status can have on workers, said Pryor.
“Regardless of the fact that, legally, it does appear that in most circumstances employers can ask, there are risks with it,” she said. “The practical risk of it is that a good percentage of your employees are going to believe — whether true or not — that you can’t ask, shouldn’t be asking or invading their privacy.”
And that can hurt a company’s employee relations and diversity efforts, she added.
“One thing for employers to consider is what impact will this have on our employees and are we set up where we can handle that impact and or potential change in employment,” Pryor said.
CNN Business’ Paul La Monica and Matt Egan contributed to this report