Option 1: Mandating the Vaccine: Require vaccination of all employees as soon as doses are available
There are legal issues to be considered when mandating a vaccine. The Equal Employment Opportunity Commission (EEOC), the agency that enforces anti-discrimination laws issued guidance and FAQs that imply that employers can lawfully mandate employees receive COVID-19 vaccinations.
However, according to Karla Grossenbacher, chair of labor and employment practice at Seyfarth Shaw LLP, employers must follow relevant laws. Employers must also make reasonable disability and religious-based accommodations based on the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964, says Grossenbacher in an interview for the Johns Hopkins Bloomberg School of Public Health podcast "Public Health on Call.”
For companies who are mandating the vaccine and requiring the employee to obtain it from them (or a third party they have contracted to provide it), an important issue is whether the vaccine comes under ADA regulations regarding medical exams and disability-related inquiries, or questions that elicit information about a disability. According to the guidance from the EEOC, providing the vaccine does not constitute a medical exam under ADA, but the screening questions may implicate ADA.
For operators choosing this route, the ADA does allow employers to mandate medical exams or make disability-related inquiries if they are job-related and considered a business necessity, a benchmark that Grossenbacher notes can be difficult to meet. According to guidance, employers must demonstrate that an unvaccinated individual poses a direct threat and that there is a "significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation."
For businesses that mandate vaccination from any provider, asking for proof of vaccination would not come under any of these ADA regulations as long as the employer does not ask further questions about why an employee has not been vaccinated.
Asking whether a person is vaccinated also does not invoke HIPAA, or the Health Information Portability and Accountability Act. HIPAA applies only to "covered entities" and "business associates.” Covered entities fall into three broad categories: health care providers, health plans, and health care clearinghouses. Most health clubs will not fall under one of these three categories, though it is possible that a club could be considered a "health care provider" if it provides certain wellness services. Business associates are entities that use or disclose protected health information on behalf of, or provide services to, covered entities. Health clubs would not be considered business associates in most situations, unless they share members' protected health information to a covered entity (for example a physician's office or a hospital system). Learn more about HIPAA in our article “Does Your Health Club Need to Comply with HIPAA?”
Employers should also check state and local guidelines before setting any compulsory vaccine policies.