- Okay, get this,
celebrities might not be the best source of information
to determine what HIPAA does and does not do.
I know.
Let's talk about vaccine verification.
That's when someone asks you to prove
that you've been vaccinated.
Although you might expect current members of Congress
to know the law, here's Marjorie Taylor Greene
getting it completely wrong.
- Well, your first question
is a violation of my HIPAA rights.
You see with HIPAA rights,
we don't have to reveal our medical records,
and that also involves our vaccine records.
- And unfortunately, now we have thousands
of other Marjorie Taylor Greene's out there,
all making similar claims.
Here's a guy explaining that it's a HIPAA violation
to film a COVID testing site.
- You're not allowed to film.
It's a HIPAA violation.
- [Cameraman] Again?
- It's always been that way.
- Here's a Karen
who says she's protected from wearing a mask
by the ADA and HIPAA.
- No, I am protected by ADA and HIPAA.
- Here's someone saying the government
can't ask you about your vaccine status
because that is illegal on its face.
This person, DotPlusDot, thinks that HIPAA
might have something to do with the Hippocratic oath.
And Angela Abarno has some #notlegaladvice
for those of you discussing
whether celebrities are vaccinated.
Quote, you are literally breaking the law
when you post about some celebrity being vaxxed or not.
And the idea that someone might have to prove
that they have received a vaccine
has led to some pretty extreme reactions.
Quote, "Proposals like these smack of 1940s Nazi Germany.
We must make every effort to keep America
from becoming a show your papers society."
And that was from freshmen Representative Madison Cawthorn.
Meanwhile, Libertarian Justin Amash
called health papers dystopian.
I guess neither of these gentlemen
have ever played a sport in school,
because health papers are required,
or enrolled their children in school,
where health papers are required.
And apparently even pointing out someone's bad HIPAA takes
gets you called a Nazi, like this from Scott Travis.
Quote, okay, grammar Nazi.
No one is allowed to ask
for your personal health information
unless they are HIPAA certified.
That doesn't even make sense.
But these reactions do raise some interesting legal issues.
Does the government have the power to verify
whether someone has been vaccinated?
Can employers ask about someone's vaccine status?
And what does HIPAA have to do with any of this?
(triumphant music)
Hey, Legal Eagles.
It's time to think like a medical malpractice lawyer.
There's a lot of dodgy information
about vaccine verification, HIPAA,
and the government's power over individuals.
So today I'm going to tackle all of your questions
about COVID-19 and the vaccines,
starting with everyone's favorite new law, HIPAA.
So what exactly is HIPAA?
HIPAA, otherwise known as
the Health Insurance Portability
and Accountability Act of 1996,
according to the internet, is fighting for your freedom.
(inspiring music) She will stop employers
from requiring vaccinations,
and will vanquish any attempt
to discuss whether a person is vaccinated.
Unfortunately, the reality is far, far more mundane.
To ensure both proper access to
and confidentiality of medical records,
Congress enacted HIPAA in 1996.
HIPAA is a federal law that establishes the rules
for managing medical information
throughout the United States.
Although states may adopt stricter confidentiality rules,
HIPAA sets the minimum standards
and protections for medical privacy.
HIPAA also gives individuals
control over their own protected health information, or PHI,
including their right to access their PHI and obtain copies,
request amendments to correct or complete their records,
request confidential communications,
obtain an accounting of who used or received their PHI,
impose restrictions on disclosure of their PHI,
opt out of fundraising communications,
and revoke previous authorizations,
as well as file complaints
about the misuse of their own PHI.
And in 2009, HIPAA was amended
by the Health Information Technology
for Economic and Clinical Health Act, or the HITECH Act.
These amendments, which became effective in 2013,
add strict new penalties,
including the possibility of personal criminal liability,
and make compliance with HIPAA's privacy
and security standards even more important.
And I have some bad news
for all of you freedom fighters out there.
HIPAA, signed into law by MAGA foe Bill Clinton,
is not actually a general privacy law
protecting anyone from getting your health information.
HIPAA is a health privacy law
that applies in very limited situations.
And let's get one thing straight
before we go any further in this video.
Attention everyone, it's HIPAA, H-I-P-A-A, not H-I-P-P-A.
All you have to do is look at the words
that go into the act.
And it's definitely pronounced HIPAA, not pronounced HEPA.
Okay, sorry, had to get that off my chest.
Now back to what HIPAA actually is and does.
HIPAA includes a privacy rule that limits doctors,
hospitals, and health insurance companies
from disclosing your personal health information.
Now, medical information by itself is not protected PHI,
unless it can be related to a person,
that is it contains one or more individual identifiers.
HIPAA specifically applies to, quote, covered entities,
which includes healthcare providers, like I just mentioned,
clearing houses that process medical information,
and health plans.
And covered entities can't disclose your PHI to other people
generally without your permission.
So for example, two employees were fired
from the University of New Mexico Hospital
when they took cell phone pictures
of patients receiving treatment
and then posted those photos to social media.
And a bunch of people got fired in LA hospitals
when they kept accessing celebrities' PHI,
because, you know, they're celebrities.
Though there are definitely some exceptions here.
For example, if you're in a car accident,
paramedics who take you to the hospital
aren't barred from discussing
your health situation with doctors.
And if the police need your health information,
there are exceptions allowing them
to get it without your consent.
However, HIPAA's privacy rule doesn't apply to your employer
if they aren't a covered entity, and it doesn't apply
when you voluntarily provide information.
Therefore, HIPAA's privacy requirements
don't apply to most private businesses.
So for example, when Cowboys' quarterback Dak Prescott says-
- I don't necessarily think
that's exactly important, Clarence.
I think that's HIPAA.
- He's almost certainly wrong.
The HIPAA privacy rule
probably doesn't apply to your employer.
The privacy rule doesn't protect your employment records,
even if the information in those records is health-related.
And the NFL is actually a good example
of how much power employees have in this context.
Think about it, the league has rules
about the way the teams report player injuries.
Teams have to list players as questionable,
doubtful, or out because of injury or illness,
and that's not a HIPAA violation,
it's an employer work rule. (team chanting)
And the same goes for everything related to Aaron Rogers.
But I mean, what can you expect
for someone that went to Cal?
Go Bruins.
So in most cases, the HIPAA privacy rule
doesn't apply to the actions of an employer.
But I can hear you asking the question,
can the government ever make health papers mandatory?
And isn't it wrong for the government
to force people to divulge that information?
Well, look, I can't tell you
whether things are right or wrong, I'm just a lawyer.
But I'm a lawyer,
I can tell you whether they're legal or not.
And if you've spent any time on the internet,
you've probably also heard the claim,
don't ask me about my vaccine status
or I'll sue, under HIPAA.
Well, but many people think
that sharing personal information
with government agencies, employers,
and other third parties is an invasion of privacy.
And look, I mean, that's a moral question, not a legal one,
but America doesn't have
one omnibus invasion of privacy law.
If you've ever played high school sports
or taken a drug test before starting a new job,
you've experienced this kind of invasion of privacy
which requires you to disclose your personal information
in order to participate in something that you want to do.
And here's an incomplete list of activities
that you can only participate in
by giving up your private information.
A driver's license, a hunting license,
concealed carry permit, school vaccinations,
sports physicals, international travel,
immigration, and voting.
Of course, those with law degrees from twitter.com
will say that those records are provided
totally voluntarily, a vaccine verification is not.
But in the eyes of the law, they're exactly the same thing.
You don't have to provide your kid's vaccination records
if you don't want to, but if the school requires them,
that means your kids
don't get to be enrolled in that school.
Likewise, you might prefer
not to provide personal information
demonstrating that you should get a concealed carry permit,
but you don't have to provide it.
You might not want your employer
to know whether you've done drugs or not,
but sometimes that's a condition of employment.
And really, there are a lot of instances when employers
can and probably should be asking about things
that might be considered health information.
A person might volunteer that information
when they call in sick, or mention it to a coworker,
or the person might write the information down
on a workers' compensation form after an injury,
or fill out a health insurance form to receive benefits.
And there are plenty of state laws
requiring you to provide medical records
to receive workers' compensation,
and if you choose not to provide this information
to your employer,
the employer can generally discipline or fire you.
Remember, in the US, most employment is at will.
And with respect to COVID-19 vaccines,
President Biden has requested OSHA begin promulgating rules
about vaccines in the workplace,
and it may be the case that employers
are actually creating an unsafe work environment
by allowing the unvaccinated to go to work.
But what about other laws?
Well, generally private businesses
can have any rules they want,
so long as they don't discriminate.
Now, of course, businesses still can't discriminate
against protected classes.
Businesses still have to follow Title VII,
the Americans with Disabilities Act,
and other laws barring discrimination.
It's illegal to refuse to serve someone
based on their race, religion, sex, or national origin.
However, someone's vaccine status
doesn't fall into any of those protected categories.
Being unvaccinated or vaccinated
is not considered a disability.
The ADA does regulate medical examinations
in the workplace, though.
Under the ADA, an employer can't ask a job applicant
whether they have a disability
or about the nature of an obvious disability.
The employer also can't force someone
to pass a medical examination before being offered the job.
However, after the person is offered the job,
an employer can condition the job offer
on passing a medical examination.
But there are some caveats here.
The employer can't impose a medical exam on just one person.
For it to be legal,
all employees in the job have to take the medical exam
and it has to be related to the requirements of the job.
But there are some new state laws
that are attempting to change the status quo
on medical information.
In Florida, for example, businesses are not allowed
to make their own decisions when it comes to COVID.
Governor DeSantis signed an order
stating that the airlines and cruise ships
could not demand proof of vaccination
anywhere in the travel-friendly state.
So the question is,
can an employer discriminate against a person
for not taking the vaccine?
And the answer is probably yes,
but it depends on the context.
The EEOC issued interim guidelines
saying that employers may encourage
or possibly require COVID-19 vaccinations,
but they still must comply
with the Americans with Disabilities Act,
Title VII of the Civil Rights Act of 1964,
and other workplace laws.
So yes, subject to certain exceptions,
an employer can make a COVID vaccine mandatory,
but they can't physically restrain you
and jab you in the arm,
but they can offer you a carrot, like a $100 bonus,
or a stick, in other words, getting fired if you refuse.
And if your employer wants these specific results,
they could ask you to voluntarily turn them over,
or make you sign a HIPAA waiver
so they can get the results from a third party,
because remember, HIPAA does actually apply
to healthcare providers
and their disclosures to third parties.
And on the flip side, it's probably legal for employers
to ban vaccinated people as well,
though that might be subject to the OSHA requirements
we talked about earlier
where if an employer is creating an unsafe work environment,
well, they run into liability on that end as well.
But a private school in Florida
banned teachers who had been vaccinated
from any in-person contact with students,
citing debunked conspiracy theories
about vaccine side effects.
The school's assessment about vaccine safety
is completely contradicted by science and data,
but the school probably has a right to make its own rules
since it's not public.
And in keeping with the reality of HIPAA
that it isn't a general privacy law,
this school's requirement
for staff to fill out a form disclosing their vaccine status
probably passes muster.
So as you can see,
there's freedom of choice going in both directions.
But of course,
what about the Supreme Court and government action?
Lots of people seem to think that the Supreme Court
should immediately strike down any law
that resembles a vaccine passport,
but a vaccine passport is just an immunization record,
and immunization records are legal,
and the Supreme Court has already weighed in on it.
So in terms of whether the government
can make vaccines mandatory just like employers,
the answer is probably yes,
but there are also many, many caveats.
The landmark case on this
is called Jacobson v. Massachusetts,
which we've talked about many times on this channel,
but a short summary, during a smallpox outbreak
in Cambridge, Massachusetts in 1902,
the state introduced an ordinance requiring all adults
to be vaccinated or revaccinated against smallpox.
The penalty for non-compliance was a $5.00 fine.
And the man named Jacobson refused the vaccine,
saying it violated his religious liberty.
Now, states generally have the right to regulate the health,
safety, welfare, and morals of its citizen.
These are known as police powers.
However, these powers have been balanced
with individual liberty interests.
And the question was whether the US Constitution
prevented the state from implementing vaccines.
The Supreme Court held that the Constitution
did not prevent such a law from going into effect.
That effectively, the public interest
in making sure everyone was vaccinated
overrode the personal liberties in this particular case.
Now, Jacobson was decided in 1905.
This is a case involving a state law,
but it's likely that the same result would be reached
with respect to the federal government as well,
so long as the federal government has the power in question.
Remember, the federal government is theoretically limited
more than a state government is.
If the federal government has that power,
then it's likely that the Constitution
isn't going to prevent such a law from going into effect.
And then some people are pointing to the Nuremberg Code
as something that would prevent a vaccine mandate
or a vaccine passport.
The Nuremberg Code, which is not a US law,
no, that's probably not going to prevent the government
from implementing any of those laws.
But on a slightly more reasonable note,
there is the question of whether HIPAA
overrules the vaccine mandate.
And there is an argument that HIPAA prevents
vaccine mandates and vaccine passports.
It's wrong, but there is an argument.
The argument goes
that it would be illegal to mandate a vaccine,
because doing so requires the government
to find out who has been vaccinated.
Under this view of the law,
vaccine cards would also be illegal because of HIPAA,
because the vaccine card is a health record,
but that's a pretty incorrect interpretation of HIPAA.
As we discussed, the law prohibits the release
of protected health information
by covered entities without your consent.
Who are these covered entities again?
Well, healthcare providers,
health insurers, and medical billing companies.
What do they have to do?
Well, they have to keep your information confidential,
safeguard it against security threats,
and make sure employees
know how to protect your information.
So unless you work for a health provider
or an insurance company
and you are a patient and client of that company
at the same time,
your employer probably isn't constrained by HIPAA,
and neither is the government.
And even healthcare providers
have the right to ask their staff about their vaccine status
since they are requesting the information,
they're not releasing it to a third party.
So the bottom line is that HIPAA means health providers
can't release your information about you
without your permission.
The law says nothing about whether you can or should
answer questions about your vaccination status
or other health issues.
HIPAA doesn't apply
when you are talking about your own health.
And of course, HIPAA has all kinds of exceptions
carved out in the law itself.
So even if HIPAA applied, the only thing you'd need to do
to create another exception is pass a law,
the same law that probably requires the vaccination
or vaccination status itself.
But whether you're staying home to avoid the anti-vaxxers
or living life to the fullest because you got vaccinated,
you need comfortable clothes.
And as the weather is changing,
I stocked up on sweaters from Mack Weldon,
like this one. (fingers snapping)
This Tech Cashmere V-neck sweater is insanely soft and warm.
It has a stitching here on the shoulder, it's slim fit,
and even though it's wool and cashmere,
it's not scratchy because it has a cotton interior.
It's genius.
It goes great with my Radius joggers,
and obviously, my Mack Weldon boxer briefs.
And if I'm not in court or on a Zoom call with the judge,
I'm often wearing Mack Weldon.
They focus on smart design and premium fabrics.
I order in multiple sizes and have them shipped to my home,
then I just return the ones that didn't fit me right
and keep the ones that fit perfectly.
And with Mack Weldon's loyalty program, you can get 20% off,
free shipping, and access to new products.
It's automatic when you sign up
and order at mackweldon.com/legaleagle.
Now, if you'd like to try Mack Weldon
and you'd like to get 20% off your first order,
just click on the link that's on screen right now
and use the promo code legaleagle at checkout.
So just click on the link that's on screen
or the one that's in the description
to get 20% off your first order.
Plus, clicking on that link really helps out this channel.
And while you're at it, click on this playlist over here
with all of my other real law reviews.
So click on this playlist, or I'll see you in court.