Not mandating the COVID vaccine? You still need to know who in your workforce is vaccinated

We are seeing a consistent pattern of increasing vaccine mandates. Even if your
business doesn’t plan to mandate vaccination, be aware that many of your clients and
customers may issue a mandate that affects your workforce. Many businesses are finding that their clients will only accept vaccinated workers onsite. Others are finding that clients
and customers refuse to come to them unless they are meeting with only vaccinated
employees. We therefore recommend that all of our clients determine who in their
workforce is vaccinated – even if they don’t intend to mandate the vaccine. This will give
businesses the information they need to pivot quickly if a large customer mandates
vaccination, or if a new government mandate affects their workforce.


Can clients demand that only vaccinated employees enter their facility?

Yes. And indeed, many are doing just that.

Can I ask my employees if they are vaccinated?

Employers are allowed by law to ask whether employees are vaccinated. If an employee
is not vaccinated, however, federal government guidance suggests that you should not
ask the reason. We recommend that employers actually require proof of vaccination and
keep that information on file.

What kind of vaccine documentation should employers request?

A COVID vaccine card should be considered sufficient proof of an employee’s vaccination
status. The employer should make a copy and securely store it with that employee’s
confidential medical information. An employee vaccinated in North Carolina is also likely
listed on the state registry. The employee can access the registry information and print it

Make sure to store vaccination information appropriately.

Employers should keep employee vaccination records in a medical file that is separate
from the employee’s personnel file. Other medical information—such as whether the
employee has ever contracted COVID-19—should also be kept here. These records are
subject to ADA confidentiality rules, which means that the employer can be liable if an
employee’s private medical information is inappropriately disclosed.

Speaking of disclosure, what if my customers or clients ask if my
employees are vaccinated?

You cannot disclose to a client the vaccination status of any particular employee because
the law considers this to be confidential medical information. You can, however, say
something like the following: “90% of my employees are fully vaccinated.” Or, “25 out of
28 of my employees are fully vaccinated.” In addition, some clients may demand to only
work with individuals who are vaccinated. While you cannot disclose any one individual
employee’s status, you can promise customers that any individuals working with the client
will be vaccinated.


If you have questions about how COVID-19 affects your workplace, contact Nicole Gardner or Erin Ball.