On September 30, 2021, the U.S. Department of Health and Human Services (“HHS”) Office of Civil Rights issued guidance to help the public and employers understand what privacy rules apply to disclosures and requests for information about whether a person has received a COVID-19 vaccine.

The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) has a Privacy Rule that regulates covered entities, including health plans, health care clearinghouses and health care providers. According to HHS, “The HIPAA Privacy Rule establishes national standards to protect individuals' medical records and other personal health information and applies to health plans, health care clearinghouses, and those health care providers that conduct certain health care transactions electronically. The Rule requires appropriate safeguards to protect the privacy of personal health information, and sets limits and conditions on the uses and disclosures that may be made of such information without patient authorization.”

The HHS guidance states that the Privacy Rule does not prohibit any person (e.g., an individual or an entity such as a business), including HIPAA-covered entities and business associates, from asking whether an individual has received a particular vaccine, including COVID-19 vaccines.

The guidance further states that the Privacy Rule does not apply when an individual:

• Is asked about their vaccination status by a school, employer, store, restaurant, entertainment venue or another individual;
• Asks another individual, their doctor or a service provider whether they are vaccinated; and
• Asks a company, such as a home health agency, whether its workforce members are vaccinated.

Although other state and federal laws may apply to employers, the Privacy Rule does not apply to employment records, including employment records held by covered entities or business associates in their capacity as employers. Generally, the Privacy Rule does not regulate what information can be requested from employees as part of the terms and conditions of employment that an employer may impose on its workforce.