“Are you vaccinated?” has become a common question in this pandemic environment. 

People have responded to the question in various ways.  Some people quickly confirm their status as being vaccinated.  Others have, without hesitation, articulated the reasons that they have not been vaccinated.  Still others have refused to provide a definitive answer one way or the other. 

Some people have refused to respond to questions about their vaccine status by claiming that the question “Are you vaccinated?” violates HIPAA (Health Insurance Portability and Accountability Act).  United States Representative Marjorie Taylor Greene and football player Dak Prescott both invoked HIPAA when asked about their vaccine status. 

Claiming that asking about vaccine status violates HIPAA is an inaccurate answer and demonstrates a misunderstanding of the basic aspects of HIPAA.  There is no violation of HIPAA in asking people about their vaccination status.  In other words, simply asking the question “Are you vaccinated?” does not violate HIPAA.  In fact, HIPAA does not even apply in most situations where a question may be asked about a person’s vaccine status.  Likewise, HIPAA does not apply when most employers inquire about the vaccine status of employees. 

HIPAA is a federal statute that prohibits the disclosure of private healthcare information to anyone but patients and their designated representatives.  Enacted as law in 1996, HIPAA only applies to “covered entities” which are defined as healthcare providers/companies, healthcare insurance companies, or entities that provide certain functions to these companies.  The law was passed in order to maintain guidelines for the ways that a person’s personally identifiable information (“PII”) and other private healthcare information are handled by healthcare entities.   In general, HIPAA only prevents the release of a person’s medical information by healthcare providers, (health) insurance companies, and other related entities.

HIPAA does not prohibit people from voluntarily sharing information about their healthcare conditions.  Nor does HIPAA require other individuals, such as friends or family, to keep a person’s medical information confidential.  Even more, HIPAA does not apply to most employers who may possess certain medical information about employees.  Other laws and regulations such as the Americans with Disabilities Act (“ADA”) and the Family Medical Leave Act (“FMLA”) may require employers to keep certain medical information confidential.  But those laws are usually not invoked by simply asking employees if they are vaccinated.

It must be noted that even if a covered entity (i.e. a medical provider or insurance company) asks an individual about vaccine status, that would not necessarily violate HIPAA.  In other words, if a person seeks medical care at a hospital and the hospital staff asks if the person is vaccinated, that question does not violate HIPAA.  There may, however, be a HIPAA violation if the hospital, without authorization, releases information that was provided or collected while the patient was seeking treatment. 

Under certain conditions, asking questions beyond the straightforward inquiry “Have you been vaccinated?” could violate certain laws or infringe upon certain rights.  For instance, during a job interview, if a potential employer asks if a job candidate has been vaccinated, that does not violate HIPAA (or regulations related to confidentiality of employee’s information).  However, if after receiving the answer to the question as to whether an employee has been vaccinated, the potential employer persists and asks questions about certain medical conditions that required or did not allow vaccination or asks the employee about health conditions in general, those additional questions could violate laws such as the ADA.  If an employer only targets certain employees to ask about vaccination status, those inquiries could violate certain anti-discrimination laws.  Nevertheless, HIPAA is not involved in basic questions that ask about a person’s vaccination status. 

At this time, most employers can mandate that employees be vaccinated as a condition of employment.  An employee may be able to get certain medical and religious exemptions from a requirement to be vaccinated.  However, employees cannot push back against an employer’s requirement that employees be vaccinated by refusing to disclose their [vaccination] status by claiming that the question “Are you vaccinated” violates HIPAA.  Likewise, a person seeking entry into a public place cannot claim that HIPAA is violated if the facility asks about vaccine status before allowing entry. 

Of course, people can always refuse to answer the question “Have you been vaccinated?”  But there may be some consequences for refusing to answer.  A job candidate may be denied a job for refusing to answer the question.  A person who does not answer the question may be denied entry into certain facilities and events.  An employee may be terminated for not answering the question.    

It is not helpful to refuse to answer the question “Have you been vaccinated?” by claiming the protections of an inapplicable law.  No argument is made stronger by relying on misunderstandings or misapplications of law.  In fact, doing so undermines any reasonable argument that a person may otherwise have.

If you are asked about your vaccine status and do not want to answer, or if you are being required to get a vaccine and do not want to receive the vaccine, the best thing to do is to consult with an attorney to determine any rights you have that are applicable to the situation.  A lawyer can help you determine if any exemptions apply in regard to certain circumstances surrounding the vaccine.  Moreover, a lawyer can help you understand and exercise your rights.  Indeed, knowledge is power.  A failure to understand applicable law means a failure to be able to persuasively and intelligently state your position.

Undoubtedly, the laws, rights, and debates surrounding vaccines and other issues related to COVID-19 will continue to be prevalent.  There is still so much that is uncertain and so much that is unknown.  Continue to search for reliable information that will keep you apprised of your rights and responsibilities.