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Aspirus conducting internal investigation following 7 Investigates inquiry

Published: Jul. 8, 2021 at 7:33 PM CDT
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WAUSAU, Wis. (WSAW) - Aspirus Health is conducting an internal investigation after one of its directors sent an email revealing the names of employees who have not received the COVID-19 vaccine.

A source with knowledge of the communication told 7 Investigates they had concerns but did not want their identity revealed for fear of retribution. The source asserted the email violated employee privacy.

According to the source, on June 21 the director of the Aspirus At Home program sent an email to the 59 employees in the program. The email referenced a memo that had been sent out a week earlier that detailed new procedures Aspirus was implementing for vaccinated and unvaccinated employees.

A spokesperson with Aspirus told 7 Investigates that employees who have been vaccinated will have a sticker on their badge whereas those who are not will not have a sticker. The spokesperson clarified that vaccinated employees do not have to wear the sticker if they do not want to, however, he had not heard of anyone refusing to wear a sticker.

In the email to Aspirus At Home employees, the director stated that the employee health department was behind on starting the sticker program, but that the At Home department will begin distributing stickers the next day. Then he listed the 10 employees who had not been vaccinated at that point.

“If the employer is disclosing information that they received as part of a confidential medical inquiry, there may be an ADA violation there,” Matthew White, the Investigation Bureau director for the Department of Workforce Development’s Equal Rights Division said.

White stated that employers have the right to ask employees about medical information in order to do things like make disability accommodations or create safety protocols, in this case, COVID-19 protocols. He said employees can be required to answer too. However, the Americans with Disabilities Act requires that that medical information stay confidential and separate from their personnel file so it is not part of any promotional decisions for that employee.

“If I ask all of my employees, ‘Have you been vaccinated?’ and 10 of them say, ‘No, I haven’t been vaccinated,’ but they don’t tell me why, two or three of those employees might not have been vaccinated because they had a legitimate disability-related reason not to do it and by revealing that I’m, sort of, outing their disabilities to their coworkers or to the public,” White explained.

He said a big misconception that many employees have is that their medical information is completely private from their employer and that HIPAA rules apply to their employer. HIPAA laws only apply to health plans like insurance companies, most health care providers, and health care clearinghouses. While Aspirus is a health care provider, for individuals working for Aspirus it is considered an employer.

Employee’s confidential medical information can be shared with other employees, like supervisors, if necessary. If an employee would make a complaint about that to the Equal Rights Division, this is how it would proceed.

“It’s going to be a fact-based inquiry about who knew about it, who needed to know, what was the reason that it was disclosed,” he said. “So, it may be relevant for human resources to disclose someone’s vaccination status to their frontline supervisor if that person is then going to need an accommodation, if they’re going to be wearing a mask in the workplace, for instance, because they’re not vaccinated, some other kind of change to the work environment that the frontline supervisor needs to know about,” White said.

There are also instances where that information does not need to be disclosed, like when employees take family medical leave. In that scenario, often all that needs to be communicated is that that employee will not be at work because there is no accommodation requirement.

As it pertains to Aspirus’ sticker program, White said there is nothing legally wrong with it. He said employers can provide incentives to employees to get vaccinated, including giving, say $100 bonuses to people who get vaccinated. He said as long as the incentive is not so good that it is essentially coercive, like requiring unvaccinated employees to work overtime.

The source told 7 Investigates the Aspirus At Home director has used “slanderous wording and discrimination,” and essentially equating individuals to “being a bad person” if they do not get vaccinated. The source said employees had not been asked to provide reasons as to why they had not been vaccinated.

Aspirus Health sent a statement in response:

“At Aspirus, our number one priority is protecting the safety of our patients, employees and communities. That’s why we highly encourage people to receive the Covid-19 vaccine, which is safe and effective in preventing infection and the spread of disease.

While some health care systems are making Covid-19 vaccination mandatory for their employees, Aspirus at this time allows team members to choose for themselves. We will strive to further increase vaccination rates through education and leadership, and we will follow rigorous Covid-19 protocols and precautions in alignment with CDC guidelines for the safety of our patients and communities.

Aspirus will conduct a thorough investigation into the issue you (7 Investigates) have raised.”

Vaccine Mandate

Employers are legally allowed to require that employees get vaccinated for COVID-19. Employees have the right under the ADA to not get vaccinated due to a relevant disability, or for a sincerely held religious or ethical belief under Title 7. However, the accommodations that an employer has to make under these two laws are different.

“The requirement on the employer is much lower than religion and creed cases,” White said. “Basically, if it imposes any cost at all that’s more than trivial, then an accommodation may not be owed, whereas, under disability law, the employer may be required to incur substantial expenses to accommodate a disability.”

There is an exception to these exceptions, however. Employers are allowed to have a policy that employees can be required to vaccinate if they pose a direct threat to their coworkers or the public.

“If they’re going to assert that an employee’s refusal to vaccinate is a direct threat, they have to go through this analysis the EEOC has laid out.”

Those factors include determining how long the threat will be posed, the severity of the threat and the likeliness that it will happen, and the imminence of the threat. White stated that if the employer determines that that employee is a direct threat, the employer may still have to make an accommodation even if that person does not have a disability under the ADA.

Pregnancy

One of the biggest questions White said his department has gotten over this pandemic has been related to individuals who are pregnant.

White said people who do not want to get vaccinated because they want to become pregnant are not protected under the ADA as a disability, adding that the vaccine research has shown it to not impact people’s ability to get pregnant. The vaccines have also been shown to be safe for pregnant people, though they are protected under the ADA. Pregnancy is considered a temporary disability and employers have to make accommodations for pregnant people.

White urged that people can contact his division if they have questions or concerns about their specific workplace scenario. DWD also has answers to frequently asked questions here.

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