I work at a personal care facility and after a recent out break of the flu all employees who didn't get a flu shot must now wear a face mask for the health of the residents. This is not the problem what is is the fact that names of all employees who didn't get the flu shot have been posted in the employees break room. Are they allowed to do this
Administrative Law Lawyer
Employer are allowed to do a great many things, but what you have described is on the questionable side of what is and is not legal. As a flu shot is a medical procedure, there is an argument that HIPAA medical privacy rights apply. However contrary to popular belief there are very limited personal enforcement rights under HIPAA. So, I recommend that you and other staff so affected meet with relevant management staff to work out how this situation should be addressed. First, the sign should come down. Second, if there is an issue of having management staff know who should or should not be wearing a mask, then there are less public ways of making that information known to those staff who need to have such information.
You and other staff should consult with a labor law attorney in your community about this as soon as possible.
This is not a substitute for a consultation with an attorney in your community with a background in health employee law.
This is a very common practice in large-scale medical facilities. My view is that a roster of who has yet to submit proof of shot (and is not yet excused from masking) is not unlawful, not a disclosure of any personal medical info, and fulfills a necessary business and patient-care related purpose. There are arguments to the contrary, of course, but someone has to make the call and determine the better position.
Where facility employees are unionized, the union will usually make the objection and determine whether there is merit to pressing the issue.
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