This story was first published on May 20, 2021. It has been updated.
Once again, the debate is heating up about privacy and your vaccination status.
RWJBarnabus has already fired six employees who did not comply with the mandate.
More companies and government agencies, including the federal government, Google and Facebook, are adding the mandate for many if not all employees. New York City, for example, will require all city employees to show proof of vaccine or have a weekly COVID test and the mayor is encouraging private businesses to do the same. California has followed suit for all state employees. New York State is mandating the vaccine for all public-facing health care workers in state hospitals.
The moves are leading some people to ask: Can a business deny you entry if you refuse to prove that you’re vaccinated? Can your employer?
Some have been quick to say that it would be a HIPAA violation to require proof of vaccination.
But they’re wrong in most cases, experts said.
HIPAA stands for the Health Insurance Portability and Accountability Act (HIPAA), which was passed in 1996 and offers protection for a patient’s health information.
The rule only applies to people in “covered entities,” which include health care providers and health insurance companies, said Timothy Ford, partner and member of the employment and litigation departments at Einhorn, Barbarito, Frost & Botwinick in Denville.
Most employers and businesses are not “covered entities,” Ford said.
“There is no law barring businesses from requesting vaccination cards or a vaccine passport before entering its place of business,” Ford said. “Certain industries, such as the travel industry — particularly the cruise lines — have indicated an intent to require proof of vaccination.”
Legislation has been introduced in New Jersey, though it hasn’t advanced. Other states including Florida and Alabama have banned vaccine passports. For some of these laws, there will probably be challenges based on constitutional grounds, Ford said.
But can employers require their workers to get a vaccine before returning to the workplace?
That’s when it gets complicated.
“There is no statute or judicial decision that specifically prohibits employers from requiring that employees be vaccinated,” said Brent Pohlman, a partner with Mandelbaum Salsburg in Roseland. “On the other hand, the federal government has not explicitly stated that employers can mandate the vaccine.”
Pohlman said the dispute comes from different interpretations of the language in the Emergency Use Authorization (EUA) used by the Food and Drug Administration (FDA) to approve the vaccines.
He said the EUA statute says that “each individual must be informed of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks.”
“Employees are interpreting this language as permitting them to `refuse administration of the product,’ but that ignores the remainder of the language which acknowledges that there can be consequences to refusal,” Pohlman said. “Even if the courts were to interpret the EUA language as permitting refusals, there is a question as to whether that would only apply to government and public entities.”
He said New Jersey’s Department of Health has issued guidance saying employers can indeed require that employees returning to work receive the COVID-19 vaccine, except for employees specifically advised by their doctors not to get it, employees with a medical condition that preclude them from getting the vaccine, pregnant or nursing mothers and employees with a sincerely held religious belief.
“I believe that ultimately it will be determined that private employers can require most at-will employees to be vaccinated,” he said.
What about people who claim they didn’t get the vaccine because of a disability?
“If a patron of the businesses identifies as having a disability, the Americans with Disabilities Act (ADA) permits a retailer to deny goods or services to an individual with a disability if their entry would result in a `direct threat’ to the health and safety of others, but only when this threat cannot be eliminated by modifying existing policies, practices or procedures or permitting another type of accommodation,” Ford said.
Those accommodations could include requiring a mask even after mask mandates are eliminated, or offering delivery, curbside pickup and online ordering.
As for employers, there is a fine line to follow.
The Equal Employment Opportunity Commission (EEOC) and the state have advised that requests for proof of vaccination are not the same as a request for medical information, Ford said. But employers need to avoid asking follow-up questions, such as why the person didn’t get the vaccine, because that would be covered under the ADA, Ford said.
“If an employer requires employees to provide proof that they have received a COVID-19, the employer should advise the employee not to provide any medical information. In most circumstances, the vaccination card is all that is available and necessary,” he said, noting employers would need to keep it confidential.
There already are cases challenging employee vaccination mandates in other jurisdictions, Pohlman said.
“I suspect we will see cases challenging college and university mandates in New Jersey in the coming weeks,” he said.
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Karin Price Mueller may be reached at KPriceMueller@NJAdvanceMedia.com.