Forging a vaccine card can get you fired -- here's how

Polsinelli Principal Lindsay Ryan joins Yahoo Finance to discuss vaccine mandates and whether an employee could be fired for forging a COVID-19 vaccine card.

Video transcript

- A forged vaccine card led to a 21-game suspension for NHL player Evander Kane last week. But there's a question here. Is the act of faking a vaccine card a fireable offense? Well, we put the question to you in our poll last week. The answer was overwhelmingly yes, with 65% of you saying that. But let's bring in somebody who's much more familiar with the law. We've got Lindsay Ryan, Polsinelli Principal. And Lindsay, this conversation got us going in our morning meeting today because I think the assumption is that faking a vaccine card is just illegal. But it sounds like you think there's a bit of a gray area when it comes to employers.

LINDSAY RYAN: Well, I think it's both. It's certainly true that counterfeiting vaccine card is illegal under federal law and many state laws as well. And so employers should be aware and should make sure that their employees are aware that presenting a fake vaccine card to their employer could result in legal liability and probably violations that range from a fine of up to $5,000 or even imprisonment.

But separately, from an employer's perspective, most employers do have some type of company policy in their employee handbook that prohibits dishonest acts. Fraud. And certainly in communications from an employee to an employer, of revealing information that would be false. And that would include faking a vaccine card to your employer. And so for most employers, they would be in the right to terminate or discipline an at-will employee for presenting a false vaccine card in connection with their vaccine policy.

- Yeah. The question brought a lot of people back to their, I guess, college ethics class in terms of, is it right or is it legally wrong? When you're answering these things, there's a difference between what you think it should be versus what the law says. And that's kind of the tricky thing when you talk about a federal requirement. And now states, you know, Texas and their governor there signing in kind of a ban on vaccine mandates. So what the laws look like.

We've heard from the White House in terms of their press secretary talking about federal law trumping state law when it comes to vaccine mandates. I mean, how do you as an employer, if you're watching this all play out, I guess thread the needle there when you have potential, dare I say, shenanigans like this of people maybe, even if they didn't forge it themselves, using I suppose some sort of fake vaccine card?

LINDSAY RYAN: Sure. Well, it's certainly true that as we see the vaccine mandates roll out from state to state, and we're coming up on a lot of the deadlines, some of the deadlines have already passed for compliance with the state vaccine mandates, and now with federal mandates already in place and on the horizon, more and more companies that previously did not have a mandatory vaccine policy are starting to adopt them.

And I think probably their first and primary concern, is how do I comply with these vaccine mandates and have a lawful vaccine policy in place? But it is starting to raise the question of, do I need to have some type of process or protection in place to ensure that we're not receiving fake vaccine cards? And what do we do if we do receive fake vaccine cards from employees? What is our liability there? And I think the answer to that question is that the primary concern is that for a lot of companies that are having vaccine policies in place, that gives them some sense of security to start relaxing safety measures, and removing masks, and removing social distancing requirements, or even routine COVID testing in their workplaces.

And if you have that false sense of security because there are individuals who are actually unbeknownst to the employer unvaccinated in the workplace, that could expose others in the workplace. And that is really the primary concern. I think from an exposure risk for the employer, there's probably not a huge liability risk if you are unknowingly accepting vaccine cards so long as you have some type of reasonable verification process in place.

- Lindsay, how have these mandates changed the way companies operate, both from an operational standpoint, but also from a staffing standpoint? I mean, you're talking about a checklist they now have to go through, number one, to see if those cards are in fact real, and then the next step being that, well, then what happens if you find that somebody has been forging a card? I mean, what are you hearing from your clients about how they're having to rethink the way they operate because of these very contentious mandates that are now in place?

LINDSAY RYAN: It's a huge burden. And I think a lot of companies are having to hire people that they didn't have in place before specifically to be dedicated personnel that are fielding these vaccine-related issues. When you have a mandatory policy, whether it's a hard mandate where employees have to get vaccinated, or a soft mandate where you have to be vaccinated or tested, you need to have somebody or a small group of people who are dedicated individuals to receive proof of vaccination or proof of COVID testing, making sure that they are going through that verification process of ensuring that it is a valid vaccine card.

And then you also have the added component that individuals are entitled to request reasonable accommodations and perhaps an exemption from the vaccine requirement for religious reasons or disability-related reasons. And so that also requires personnel that can field those requests, engage in the interactive process with employees, and respond to those requests. So it's a big ask of, I think, HR departments for companies. And they are having to rethink how their company is equipped to handle those issues.

- Yeah. As if people already didn't have enough reasons to maybe not trust HR. There's another one in here. They could be narcing them for a federal crime now. But this is something that we were talking about. We've heard anecdotally. But I suppose you're a lawyer here. You're talking to companies dealing with this on the daily. I mean, have you heard or maybe seen an uptick in any of this in terms of not only companies trying to figure this out, but also I suppose their one-off cases of maybe discovering that maybe employees weren't as truthful about their vaccine status.

LINDSAY RYAN: We are starting to hear more and more about companies who have questions about what to do if they suspect that a vaccine card is fake. And it's not always clear. And they want to know, how many questions can I ask of the employee? How can I push back? And then what do I do if I do suspect that there is a fraudulent card?

And I think most employers are taking a pretty hard stance. If they find out that someone has presented a fake vaccine card, there usually is a company policy in place that will entitle them to discipline that employee. And usually that disciplinary action will just be termination. I know that there are some employers who have considered even more aggressive action of actually reporting those employees to federal authorities, depending on the context of the situation. But that is certainly a more extreme reaction from an employer.

- Yeah. It's raising a lot of questions. And our viewers weighed in, at least on terms of what they think is right to do here. But very interesting to hear all these answers. Appreciate you coming on here to chat with us. Someone who's actually able to answer these with a law degree. Lindsay Ryan at Polsinelli Principal. Appreciate you coming on here to chat with us today.