In Blog

Updated August 5, 2021

With the new more contagious Delta variant spreading and vaccination rates plateauing, many states are seeing a sharp rise in COVID-19 cases and hospitalizations. Employers who previously relaxed workplace safety procedures are revisiting vaccination policies and mask mandates.

What is the latest CDC guidance on masks?

On July 27, the CDC updated its guidance on mask-wearing to state that vaccinated individuals who are in areas of substantial or high transmission should wear masks in indoor public settings. This is to protect the vaccinated individual but also to protect those who are not vaccinated.

The guidance for unvaccinated individuals has not changed. Since they do not have the protection provided by vaccination and are at higher risk for severe illness, they should always wear masks in indoor settings.

What does this mean for masks in the workplace?

Employers have an obligation under the law to protect employees and the public from known threats.

Throughout the pandemic, employers have had to respond quickly to change and adapt their policies as needed to keep their employees, customers, and guests safe.

With increased threat from the Delta variant, employers who updated their workplace mask policies to allow individuals who have been vaccinated to go without masks may want to revise their policy.

As with all company policies, any changes should be in writing and communicated to all employees.

What should I do if an employee tests positive for COVID-19, was exposed to the virus, or has symptoms?

Employers should continue to follow testing and isolation procedures recommended by the CDC. These are described in our blog.

Can you ask employees for proof of vaccination?

Yes. The Equal Employment Opportunity Commission said in December 2020 that employers can ask their employees for “proof of receipt” of vaccination.

The EEOC recently expanded its COVID-19 technical assistance to specifically address questions about vaccination in the workplace and what impact ADA and other EEO laws have upon these issues. In this guidance, the EEOC clarified that asking employees for proof of vaccination is not considered a medical inquiry under the Americans with Disabilities Act (ADA). However, vaccination records are considered medical information and must be kept confidential and stored separately from an employee’s general HR file. We recommend limiting the number of individuals who have access to them.

Employers may ask for a copy of an employee’s vaccination record card which shows the vaccine date and either the healthcare professional or site responsible for administering it. No additional medical information or history is needed. Employers who do request proof of vaccination need to communicate very clearly to employees that they should not provide any information or details beyond their vaccination record.

To avoid violating the ADA, do not question employees further about their medical history or their reasons for getting or not getting the vaccine. Under the ADA, employees do not have to share information about a disability unless it is necessary for their job. If a disability is the reason an employee did or did not get the vaccine, you do not want to create a situation where the employee feels obligated to disclose this.

You should also review your state’s privacy laws as some states, including California, have laws governing the data that employers can collect from their employees. Additionally, some states are considering legislation that regulates the collection of employees’ vaccination status. Florida recently passed a law that prohibits businesses from requiring customers to provide proof of vaccination. The law does not prohibit businesses from requiring their employees to provide proof of vaccination, however.

Many employers are relying on the honor system as their method of vaccine verification. Whatever process you implement, make sure it is communicated clearly to employees.

Can employers require employees to get vaccinated?

Yes, as we shared in our blog, employers can require their employees to get vaccinated if mandatory vaccination is “job related and consistent with business necessity.”

Be clear and specific in your policy. Establish a deadline by which employees need to be in compliance. We also recommend paying employees for time off to get vaccinated. Through September 30, employees may get paid sick leave tax credits for wages paid to an employee to get the vaccine or recover from vaccination.

Under the ADA and Title VII of the Civil Rights Act, employers must make accommodation for those who have disabilities or have sincerely held religious beliefs that prevent them from getting vaccinated. Accommodations could include an exemption, weekly required COVID testing, mask-wearing, working at a distance from other employees, modified shifts, or the opportunity to work from home. Employees who are not vaccinated due to pregnancy may also be entitled to an accommodation if the employer has made modifications for other employees.

If you are making vaccination required, you must communicate clearly that you will make limited exemptions for medical reasons or sincerely held religious beliefs and how employees can apply for one of these exemptions. You must then have an interactive process to discuss the employee’s specific situation and what accommodations can be made. That do not threaten the health and safety of others and that do not create undue hardship for the company.

Employers who are mandating vaccination should review guidance provided by EEOC about how to handle accommodation requests due to a disability, sincerely held religious beliefs, or pregnancy.

How can you encourage your employees to get vaccinated?

In many cases, vaccine hesitancy stems from an incomplete understanding of how the vaccine development and approval process works. Employers can encourage vaccination among their employees by providing vaccine information from credible sources, as well as information about where and how employees can get vaccinated.

EEOC has new guidance about how employers can encourage employees and their family members to be vaccinated without violating EEO laws. This technical assistance also provides a list of sources that you can share with your employees.

Employees are also less likely to get vaccinated if they have to take time off without pay to do so. Employers should take advantage of paid sick leave tax credits created under the American Rescue Plan. Through tax credits, employers will be reimbursed fully for providing paid leave to employees to get vaccinated or recover from their vaccination.

What if employees are not truthful about their vaccination status?

Currently, there is no system that allow individuals to securely, confidentially share, or employers to verify, their vaccination status. Vaccination record cards themselves are neither verified nor secured. They can easily be altered, creating opportunities for fraud and falsification.

Employees who lie about their vaccination status are putting others at risk and should face corrective action, even in workplaces where vaccination is not required. Address the matter with the employee directly and follow your progressive corrective action procedures. Consider how you would respond if an employee lied on any other employment form or document. As with all policies, make sure you enforce vaccination and mask-wearing policies consistently across the organization to avoid discrimination suits.

You may also encounter employees that have lost their vaccination record card. In these cases, you may ask the employee to self-certify that they have been vaccinated.

Communication is the key to success.

No matter what policies and processes you put in place around vaccination, vaccine verification, and mask-wearing, communication is key to success. Once you have formalized your policy, distribute it in writing to all employees.

Make sure your managers are trained in your policies, as they will be responsible for implementing them and fielding questions from employees and customers.

These are sensitive issues that can create friction in the workplace. Employers should monitor employee morale and watch for signs of resentment or conflict arising between vaccinated and unvaccinated employees.

Most importantly, employers will have to continue to be flexible. What we’ve learned during the pandemic is that policies may have to change monthly, or even weekly, and employers should pay close attention to changes guidelines and how they affect workplace policies.

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