NAVIGATING MASK REQUIREMENTS, VACCINATION & RELAXED SAFETY PROTOCOLS IN THE WORKPLACE
As more people get vaccinated and mask restrictions are eased, we are entering a new, more hopeful stage of the pandemic. This is great news, but these changes bring a new set of challenges for employers to navigate.
The latest safety guidelines from the Centers for Disease Control state that people who are fully vaccinated no longer need to practice social distancing or wear masks except in crowded indoor settings.
What does this mean for masks in the workplace?
The Occupational Safety and Health Administration (OSHA) has not revised its guidelines for masks in the workplace since the CDC provided its latest guidance for fully vaccinated individuals. Many employers, however, are updating their workplace mask policies to allow individuals who have been vaccinated to go without masks.
In industries where employees interact with a high volume of customers daily and where it’s not feasible to require proof of vaccination from all visitors, most businesses are leaving their employee mask mandates in place.
Employers should remember that the CDC’s updated mask guidance applies only to individuals who are fully vaccinated. Since employers have an obligation under the law to protect employees and the public from known threats, they should continue to require employees who aren’t vaccinated to wear masks to protect themselves and others.
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.
Yet employers have been worried about how to implement a vaccine verification process without infringing upon employees’ privacy rights or violating federal laws and regulations, specifically the Americans with Disabilities Act (ADA).
The EEOC just 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.
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.
Vaccination records are also considered confidential medical information under the ADA, which means they must be stored separately from the employee’s main personnel file. You should limit the number of individuals who have access to this information.
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.”
To be compliant with the ADA and EEO laws, these employers must make accommodations for those who have disabilities or have sincerely held religious beliefs that prevent them from getting vaccinated.
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.