Now that COVID vaccinations are widely available and the CDC has relaxed mask guidelines for fully vaccinated individuals, many employers are struggling to navigate what sometimes appear to be contradictory messages on masks and vaccinations. Following are examples of questions we’ve received from a number of clients in recent weeks.
An employee stated that they are vaccinated and therefore don’t have to comply with our mask rule, is that true?
The CDC has recently issued guidance stating that people who are fully vaccinated no longer need to wear masks in many situations. There are, however, many exceptions where a mask may still be required.
Where state or local mask mandates remain in effect, the answer is clear, the employer should continue to require mask use in the workplace. Mandates also remain in place for federal property and public transit systems. The CDC guidance is just that, guidance, and does not supersede applicable public health orders.
That said, many states have lifted mask mandates. In some cases, county or city orders may remain, but many people now live and work in areas that have broadly eliminated mask mandates. Regardless, employers may wish to continue requiring mask use for employees due to their obligations under OSHA. The OSHA general duty clause states that employers “shall furnish to each of his employees, employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” COVID-19 is clearly a recognized hazard and both federal and state OSHA guidance strongly encourages (or in some cases require) mask usage.
OSHA appears to be considering new regulations that may take into account the recent CDC guidance, but until then, masks still make sense for many employers.
May I ask my employees about their vaccination status?
The EEOC has indicated that employers may make limited inquiries about vaccination status without violating the Americans with Disabilities Act (ADA). Furthermore, such an inquiry from an employer will seldom be subject HIPAA restrictions. There are public perceptions that HIPAA automatically applies to any and all health information, but that has never been the case. The Health Insurance Portability and Accountability Act (HIPAA) does place restrictions on the disclosure of Protected Health Information (PHI) from “covered entities” but does not typically apply to an employment related inquiry.
If an employer does collect vaccination information from employees, they should limit inquiries to basic information, such as the dates vaccinations were completed. Collecting a copy of a CDC vaccination card should also be okay as it will not typically contain information that could be considered a medical inquiry under the ADA. As is the case with any employee medical information, vaccine records should be protected by the employer and segregated from regular personnel files.
Unlike the federal government, which is broadly permissive when it comes to vaccine inquires, some states are taking a different stance. For example, Montana recently passed a law prohibiting most employers from asking employees about vaccination status. Other states will likely pass similar laws.
Some states do support the practice of tracking vaccination status, with New York promoting it’s “Excelsior Pass” mobile app which allows businesses to check vaccination status. Local governments may also take a position on the practice. Santa Clara County California recently published a public health order requiring businesses to track employee vaccinations.
Knowledge of vaccination status could prove important for employers, but whether or not such an inquiry may be made depends on location.
I’ve heard that other companies are requiring employees to get vaccinated, can I do that?
We’ve gotten this question a lot and the answer is complex. Federal regulators seem to be supportive of the practice, with the EEOC issuing guidance on vaccine mandates before vaccines were even widely available. The ADA does allow employers to impose standards intended to prevent a “direct threat” in the workplace. Where a direct threat cannot be reduced, an employee can be excluded from the workplace. Determining when a direct threat may exist will be situationally specific. The risks on a construction site are probably much lower than in a critical care facility.
Some high-profile employers are taking steps to require vaccines. Companies that choose to follow their lead should be mindful of the direct threat standard and also where an accommodation may be required under the ADA or Title VII. Accommodations may be required for a variety of reasons including disability and religion.
Once again, states may also have a say; with some states like Arkansas passing legislation that would prohibit employers from mandating vaccines in many circumstances. Some large multistate employers who wish to mandate vaccines may decide to challenge state authority in federal courts under the doctrine of preemption, but we aren’t encouraging our clients to enter that costly battle.
Rather, if you want your employees to get vaccinated, find ways of encouraging the behavior. The American Rescue Plan Act (ARPA) allows for government funded paid time off for vaccine appointments and missed work due to vaccine side effects and many employees may only need a small nudge from a trusted voice to make the decision on their own.
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