Employers Deal with Workers' Lost Vaccination Cards

​Employers that require proof that employees have received COVID-19 vaccinations have options about what to do when workers lose their vaccination cards. Some companies may choose to require workers to get replacement cards, while others may accept electronic copies or attestations that employees were vaccinated.

Mandate Vaccines?

Employers first need to decide whether to require their employees to get vaccinated, said Jill Cohen, an attorney with Eckert Seamans in Princeton, N.J. The next question is whether to require proof of vaccination and what proof suffices, she said.

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Whether U.S. employers should mandate COVID-19 vaccinations "has been a topic of hot debate—focused around the poles of the balance of public health with privacy and personal autonomy," said Loren Gesinsky, an attorney with Seyfarth in New York City. He noted that the Equal Employment Opportunity Commission issued guidance last year indicating employers could mandate that their employees receive COVID-19 vaccinations. Surveyed employees oppose a government-mandated vaccine, but a slight majority of respondents thought employers should make vaccinations a condition of employment, according to Society for Human Resource Management research.

To encourage more widespread vaccinations, President Joe Biden has announced a paid-leave tax credit to employers that provide full pay for any employee who takes time off to get a COVID-19 vaccination.

"There is substantial pushback on mandatory vaccinations and passports, which has culminated in numerous state executive orders and pending legislation," said David Barron, an attorney with Cozen O'Connor in Houston.

Mandatory vaccination carries legal risks during the emergency use authorization period and practical risks if a significant number of employees refuse to get vaccinated, said Bob Neiman, an attorney with Much Shelist in Chicago.

"But also consider what your customers are demanding in terms of having in-person interactions with your employees," he added. "If customers are saying, 'I'll only deal with someone who has been vaccinated,' then the marketplace is doing the talking. Employers should try to do the right thing for their employees, but also listen to what the market is demanding in terms of proof of vaccinations."

Employees with a religious or medical exemption must be reasonably accommodated and should be reassigned to customers not demanding interaction only with vaccinated employees, if that is possible, he said.

Nonetheless, Emily Paige Harbison, an attorney with Baker McKenzie in Houston, said some states are attempting to pass legislation that could prohibit employers from asking for proof of vaccination or inquiring about vaccination status. "So, if a company decides that it wants to ask for proof, it should ensure such a requirement complies with state, county and city regulations, including health department orders that sometimes limit the information that may be required from employees," she said.

The company should provide clear instructions on the acceptable forms of proof of vaccination, she recommended. It should also instruct employees not to provide any additional information beyond what is requested and not ask employees follow-up questions about their vaccination status.

"If the company merely encourages employees to get vaccinated but does not require it in order for employees to return to work, then the employer likely shouldn't necessarily require proof of the vaccine," she added.

Replacement Cards

Every state health department has an immunization information system (IIS), said Daniel Kadish, an attorney with Morgan Lewis in New York City. Vaccination providers are required to report COVID-19 vaccinations to their IIS.

If an employee has lost his or her vaccination card and the employer requires proof, the employer can ask the worker to contact the vaccination provider or IIS to get a copy of the employee's card, Kadish said. "Note [that] an employer cannot reach out to the IIS directly," he cautioned.

If the company's policy is that all employees in safety-sensitive positions must be vaccinated when they return to work, subject to exceptions under applicable law, and an employee is unable to show any proof of vaccination, the employer can require the employee to work remotely or be moved to a different position until he or she can show proof, Harbison said.

Electronic Copy

Employers that are requesting verification may accept an electronic copy so long as there is no sign of fraud, said Holly Sutton, an attorney with Farella Braun + Martel in San Francisco.

"But many venues, such as sporting events and museums, will likely require the original card to verify vaccinations," she said. "Thus, employees should be encouraged to contact the provider where they obtained the vaccines to request a second copy."

Attestations

If an employee is unable to provide print or electronic proof of his or her vaccination, the employer can require the employee to sign an attestation that says the person confirms that he or she has been vaccinated and the dates of the vaccinations, Harbison said.

Tread carefully. Nancy Inesta, an attorney with BakerHostetler in Los Angeles, said, "I would not recommend taking people at their word where the vaccine is being mandated by the employer."

And be sure to treat all employees similarly. "Permitting some employees to confirm that they have been vaccinated on an honor-system basis but not others could lead to claims of inconsistent treatment and potential discrimination," Kadish said.

However, if employers are going to accept employees at their word, they should do so for all employees and may want to use an expanded set of questions, Sutton said. For example, they may ask the employee to report where the dose was administered, the vaccination date and the name of the manufacturer.

"They may ask if the employee is able to provide an alternative form of verification such as an e-mail from the provider confirming the appointment," she said.

Note that federal contractors may not rely on attestations, according to federal guidance.

Proactive Steps

Employers can take steps to help ensure employees aren't left without copies of their vaccine cards, Kadish noted, including:

• Offering to keep electronic copies of employees' vaccination cards. The copies must be kept confidential and separate from personnel files.
• Providing free, protective sleeves for vaccination cards.

"Employers should ask employees to submit proof of vaccination immediately after vaccination—in other words, before they have a chance to lose the cards," he said.