- August 27, 2021
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The Centers for Disease Control and Prevention is advising even vaccinated people to return to mask-wearing in indoor public spaces located in areas with higher rates of coronavirus infections. This guidance — prompted by concerns about the rapidly spreading delta variant — may cause many people to worry about going to indoor places where social distancing is not possible, such as a doctor’s office or a spa, especially if they might have to take off their masks.
In these situations, they might be wondering, can they ask the potentially loaded question, “Are you vaccinated?”
“Not only do they have the legal right, but I think they have an obligation to their own health and safety to ask the question,” said Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law at Georgetown University. “It’s an entirely appropriate and logical question to ask if someone is going to be in very close, personal contact with you: whether they’ve been vaccinated.”
It is not a violation of the oft-cited HIPAA federal privacy law to ask your doctor or dentist or other health-care workers, as well as people who provide close-contact services, including hair stylists, aestheticians, massage therapists and physical trainers, if they are vaccinated. In many situations, at least from a legal standpoint, “you can ask anything you want,” Gostin said. But, he added, it’s important to remember that “you can’t force somebody to answer.”
Given the divided views about the coronavirus vaccines, combined with widespread confusion about health and privacy laws, it’s not surprising that many people feel uncertain about how to approach asking, experts said.
“We are navigating kind of a new etiquette as well as the new ethics in this context,” said Ruth Faden, a professor at the Johns Hopkins Berman Institute of Bioethics at the Bloomberg School of Public Health. “It’s possible to sort of reason our way through to what seems ethically OK to do and what seems problematic.”
Here are tips for asking about someone’s vaccination status.
HIPAA includes provisions to protect a person’s identifying health information from being shared without their knowledge and consent, but it is not a prohibition on asking, experts said. What’s more, the law only applies to specific health-related entities, such as insurance providers, health care clearinghouses, health care providers and their business associates. It would, for example, be a violation of HIPAA if your doctor or insurance company did not obtain your consent before sharing your vaccination status with someone else.
Similarly, the Equal Employment Opportunity Commission, which enforces federal workplace anti-discrimination laws, noted in a guidance that the Americans With Disabilities Act requires employers to maintain the confidentiality of employee medical information, including whether they’ve received a coronavirus vaccine. This means that, in most cases, an employer who is asked whether individual employees are vaccinated cannot answer that question.
But the fact that an employer can’t disclose information doesn’t mean you are barred from asking people directly about their vaccination status, said Robert Gatter, a professor with the Center for Health Law Studies at St. Louis University School of Law. “It’s awkward, but it’s not illegal,” Gatter said. “If they share it with you, that’s their choice.”
Gostin agreed. “It’s absolutely lawful and ethical and understandable from a deeply human point of view to want to know if the person that’s coming into close contact with you is vaccinated.”
There are also legal — as well as ethical — reasons those who are asked, especially health care professionals, should answer honestly, experts said. People, regardless of their profession, could face legal consequences if they lie about their vaccination status and then infect others with the coronavirus, Gostin said.
While the American Medical Association’s Code of Medical Ethics doesn’t specifically address whether physicians have a responsibility to disclose personal health information to their patients, it emphasizes the importance of honesty.
All health-care professionals “have an obligation as part of their role responsibilities to advance the interests of their patients and also to engage honestly and truthfully with their patients when the information that is being asked for is instrumental and useful for the patient,” Faden said.
It’s best to contact people before any appointments to express your concerns, Gatter said. It’s fine to say, for example, that you are vaccinated and wouldn’t feel comfortable coming into close contact with anyone who is unvaccinated or unmasked. Then, he said, you can ask about the safety policies in place, such as a vaccination and masking requirements, and how they are being enforced. Gatter also encouraged employers to inform employees about how they plan to address these questions, and ideally obtain consent from workers to publicly disclose general information about vaccination rates among staff or to make assurances that patrons won’t have contact with unvaccinated individuals.
As noted above, you can always directly ask an individual about their vaccination status, Gatter said. Be prepared to receive versions of the following answers, he said: “Yes,” “No,” or “I don’t want to tell you.”
It may be helpful, Faden suggested, to share your vaccination status first. When people disclose things about themselves, others will often respond in kind, she said. If someone doesn’t reciprocate unprompted, “I still think it is perfectly appropriate to say, ‘Would you be all right telling me if you’ve been vaccinated or not?’ “
If the person responds that they aren’t comfortable sharing their vaccination status, “I think you can’t press further,” Faden said. But Gostin said it’s OK to not be satisfied with a nonresponse. “It’s basically not answering in a polite way, but it’s still not answering,” he said.
In this situation, you’ll need to make a judgment call about how you want to proceed, experts said. Perhaps you feel comfortable continuing to see the person as long as there are other safety protocols in place. But, experts emphasized, you have no legal or ethical obligation to keep your appointment. “If the person is not forthcoming with the information, the patient or the client can refuse to be treated and seek treatment through another provider,” Gostin said.
If a person responds that they are vaccinated, you also have to consider whether they are being truthful. Though you can ask to see proof of vaccination, such as the vaccination record card issued by the Centers for Disease Control and Prevention, experts cautioned against doing so because it may suggest distrust, which can damage the relationship.
“Generally, I operate on the assumption that most people are people of good faith,” Faden said. “If they’re not vaccinated, they may not share that, but I don’t think most people are going to lie in that context.”
Conversations about vaccination status can be sensitive and it’s important to be respectful.
Ask your questions politely and frame them in the context of concerns about personal safety, Gostin said. This goes both ways: People who are asked, particularly health care workers, “shouldn’t be aggrieved by the question as if it were an inappropriate question,” he said. “They should be compassionate.”
It’s not acceptable to become belligerent, hostile or personally offensive if someone chooses not to tell you whether they’ve been vaccinated, Faden said. But if you decide you aren’t comfortable being in close contact with someone while not knowing their vaccination status, you should be transparent about that and explain why you won’t be seeking their services anymore, Faden said.
“I don’t think it’s great to just disappear,” she said, adding, “Just because someone has decided not to be vaccinated doesn’t mean that they’ve forfeited their claim to decency in human interaction.”