On September 30, 2021 and October 4, 2021, respectively, the Department of Health and Human Services (HHS) and the Department of Labor (DOL) issued updated guidance regarding Covid-19 vaccinations.
The HHS guidance specifically relates to recent questions regarding the HIPAA Privacy Rule. The new FAQ’s provide that HIPAA does not prohibit businesses or individuals from asking their customers or clients whether they have been vaccinated. This is the case both because HIPAA only applies to covered entities, and because HIPAA does not apply if a covered entity (such as a hospital) asks patients or visitors for their vaccine status. This new HHS FAQ’s also specify that HIPAA doesn’t apply when an employer asks an employee their vaccination status. This is because the privacy Rule doesn’t apply to employment records. While it is permissible to ask for this information, employers must keep vaccination status confidential and store that information separately from other employment related information under the Americans with Disabilities Act.
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