Can my employer fire me for not revealing my birth date on my Covid Vaccine card? ?
3 attorney answers
I would assume that your company already knows how old you are, because HR and/or the payroll department likely already has your birth date on file. You mentioned that you had previously accused the manager who contacted you of discrimination. Was it age discrimination? Do you fear that once she knows your birth date, she will attempt retaliation on the basis of age? Under “normal” circumstances, you should be reasonably assured that your personal information will be stored confidentially by your employer and, you should have no qualms about submitting your birth date, especially because this is not new information to the company. However, if you feel the information will not be stored properly, you are correct to be cautious with it. Speak to your direct supervisor to see if there is another way to address the problem. If you get an unsatisfactory answer, consult with an employment lawyer to discuss the details of your situation and how to proceed.
Curiously, I had thought of this same issue relative to my own vaccination card; frankly, my date of birth should not be necessary to show proof of vaccination. H.R. presumably already has your date of birth; however, your concern that this could be disclosed to others has now become manifest, from the follow-up email you received from a non-H.R. employee. Although the issue is too new for there to be any specific guidance (to my knowledge), as a health record, it should be kept confidential and maintained securely by a designated employee or manager. The Americans with Disabilities Act (ADA), which is applicable to certain medical records in the workplace, provides that medical information, including "medical histories . . . be collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record. " 42 U.S.C §12112 (d) (3), (4). That information may, however, be disclosed to supervisors and managers with regard to restrictions & accommodations only; to first aid & safety personnel for purposes of administering treatment; and to government officials investigating an employer's compliance with the law.
Although not an "exact fit," the ADA provision may be applicable; if so, your vaccination card, as a medical record, should be part of your medical file and kept as confidential, maintained in separate files in the employer's records and not generally accessible to others. With such an assurance from H.R., the unabridged card (with DOB) should probably be provided to a designated individual. If you have any further questions, please feel free to contact one of the attorneys practicing in this area listed on Avvo , including this office. I'm sure that others share your concerns; this is new to all, including the H.R. staff, who may just be "winging" it, but still must comply with the law.
This very much sounds like a privacy violation, but more thought and review is needed. Companies need to be very cautious when dealing with Personally Identifiable Information PII, even when they already have it for legitimate purposes. A company should not be exposing any PII with anyone including fellow employees that have no business in having that information. That said, I can see an argument that the employee in question does need your status.
While your employer now has the ability to require proof of vaccination and even fire you for failure to be vaccinated.
The way to deal with this is state that you are willing to provide your card to the confidential HR personnel. See if that defuses the situation if it does not you can bring up the fact that you have reported the individual for discrimination and that you feel being made to report to her is retaliation.
I would suggest that either way you contact an attorney and get a consultation on your rights, what you need to do to be compliant and how to respond should any further discrimination occur because of this interaction.
But I limit my answer to the use of personnel that are outside the HR department as it is their job to make sure that people cross their T's and dot their I's and would already have that information.
No Attorney-Client Relationship or Legal...