COVID-19 vaccines are now widely available, signaling an eventual return to work. That is certainly welcome news for employees and employers alike, but employers are finding themselves in an unprecedented quandary—whether they can condition workforce re-entry on proof of employee vaccinations. The Equal Employment Opportunity Commission (EEOC) and state legislatures have generally green-lighted employer vaccination programs, so long as employers comply with other statutory and contractual (such as union) considerations. For example, New York employers are required to provide up to four paid hours off to receive a COVID-19 vaccine. Beyond these considerations, however, privacy laws present an additional challenge as to how employers can collect, maintain and use proof of vaccinations.

Given the lack of federal privacy law applicable to employees and the proliferation of various privacy laws around the world, employers with personnel in multiple locations will find there is likely no one-size fits all solution for this issue. As we discuss below, however, some common approaches can smooth the way for a successful vaccination and return-to-work campaign in New York and in many other—if not most other—jurisdictions.

Means Must Only Further the Ends

Whether employers ask employees to provide vaccine certificates, administer the vaccine in-house, or instead engage third-party vendors to administer the vaccine, it is crucial that employers narrowly define the purpose of any vaccine data they collect. Employers who collect vaccine data generally do so to promote workplace safety, and in those situations, it imperative that any such data be used for no other purpose.