As the country and California continue to make great strides combating the pandemic, the CDC recently announced guidelines that fully vaccinated persons may stop wearing masks and distancing in most settings. While these CDC recommendations have been met with great excitement given the past 12 months, California employers should note that the new CDC guidance has an exception that largely swallows the guidance because masks and distancing should be maintained “where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.” As of now, Cal/OSHA and the California Department of Public Health continue to require mask use and physical distancing throughout the workplace. Just yesterday, the Cal/OSHA Board decided to postpone a vote until June 3rd to decide if any COVID safety revisions need to be made.
Storing Vaccination Status Information
Employee medical information must be stored separately. While we currently do not yet know whether COVID-19 vaccine status information will be considered “medical information,” current guidance suggests Employers should treat such information similar to other, private medical information. Federal and state law require that all medical information be kept separate from the employee’s general personnel file. That means that COVID-19 vaccine information should not be stored in the same physical or electronic file as the employee’s more traditional personnel and/or payroll records.
The current DFEH guidance recognizes that “simply asking employees or applicants for proof of vaccination is not a disability-related inquiry, religious-creed related inquiry, or a medical examination.” However, the DFEH also provides that “any record of the employee must be maintained as a confidential medical record.” Based on this, written and electronic records pertaining to employee vaccinations for California employees should be maintained as confidential, separate from an employee’s personnel file.
Compliance Tips
Employers should be aware of how their HR Department and managers are storing vaccine status information obtained from their employees and ensure they are protecting the privacy of such information. If vaccination status is stored electronically, employers should make certain to password protect this information and limit access to only those who are expressly authorized to view it, such as human resources. In addition, this information should be stored in separate electronic files from the traditional non-medical personnel records.
Lawsuits related to vaccine mandates, paid time off for vaccinations, and many other vaccine-related issues will be on the rise in 2021 and 2022. It is important to make sure that the custodians of this information in your organization are properly storing this information and keeping it confidential and complying with applicable laws.
If you have questions or need assistance with assessing whether to mandate or incentivize vaccinations in your workplace, drafting a vaccination policy, or how to ensure compliance with record-keeping requirements, feel free to contact me.