Following is recent DoD guidance on leave and other issues related to vaccinations of its civilian employees against the Coronavirus, including privacy and other considerations regarding asking employees if they have been vaccinated and their interest in being vaccinated.
May a supervisor ask employees if they have been vaccinated for COVID-19?
For purposes of acting on a request for administrative leave for vaccination and recovery, supervisors may ask employees about the time and location of the vaccination event and whether there was a reaction to the vaccine requiring a period of recovery. But as a general matter, supervisors may not ask employees if they have been vaccinated. Supervisors may ask about an employee’s status only if there is a business necessity for this information, as determined on a case-by-case basis. Currently, COVID-19 vaccines have been approved under an Emergency Use Authorization and vaccination has not been established as a requirement through appropriate DoD processes for any DoD civilian occupation. Therefore, the information is not necessary for purposes of most employment decisions. In particular, information about an employee’s vaccination status is not necessary for supervisors to make decisions about how and when employees will report to a workplace instead of telework. Supervisors need to follow applicable Force Health Protection guidance and implement appropriate workplace measures to protect all employees, assuming that not everyone will be vaccinated. Only in very limited circumstances, such as determining how long an employee with a known or suspected exposure must temporarily remain out of the workplace or whether an employee may be exempted from certain force health protection requirements as authorized in applicable policy, would it be reasonably necessary to request an employee voluntarily provide information about the employee’s vaccination status. Such information would be obtained on a case-by-case basis, to comply with specific Force Health Protection guidance, not as part of a general survey of the workforce.
May the human resources or occupational health office ask employees if they would like to be offered an employer-provided vaccine?
Yes. The human resources or occupational health office may survey the workforce to determine employee interest in receiving an employer-provided vaccination for purposes of obtaining an appropriate number of doses and facilitating voluntary vaccination. The surveying office must not make assumptions about the vaccination status of employees who do or do not express interest in an employer-provided vaccination. A list of interested employees should not be retained once it has served its intended purpose of facilitating voluntary participation in employer-provided vaccination clinics. Only the minimum amount of personally identifiable information (PII) needed to determine employee interest in receiving the vaccine and to inform the number of doses required to meet demand at each vaccine tier level should be collected; no information concerning a medical condition may be requested or maintained for such purposes. PII collected during a survey must be appropriately safeguarded. Additionally, any PII compiled in response to the data call must be shared only with those who have an official need to know because an individual’s vaccine tier may potentially reveal the person has a medical condition.
May the human resources or occupational health office ask employees to voluntarily provide information about their vaccination status for purposes of assessing an organization’s occupational health status, provided the data is aggregated and not linked to particular employees?
Yes. Similar to the protected manner in which the human resources office collects data from employees who voluntarily self-identify as having a disability, data may be collected on a voluntary basis from employees who indicate they have been vaccinated. Such data may only be used in an aggregated and de-identified manner that is unlikely to associate it with any particular individual. For example, it would be permissible to report that 50% of employees in a large organization have indicated they are vaccinated, but it would be impermissible to report that 50% of employees in an office with only two employees indicated they are vaccinated.