As variants of COVID-19 surge, public health guidance fluctuates, and controversies continue to erupt over vaccinations and masks, businesses across the country grapple with whether, when, and how to return to work. Naturally, employers and employees have questions as they slowly move into a new normal. Among my clients, what follows are some of the most common questions related to COVID-19 and returning to work.
Can I require my employees to be vaccinated before returning to the office? If so, can I ask them to provide proof of vaccination?
Under federal law, private employers can mandate vaccination as a condition of employment. However, employers with mandatory policies must consider reasonable accommodations for individuals who cannot get vaccinated due to a medical condition or sincerely held religious belief. It is also permissible to request documentation or other confirmation of vaccination. However, under the Americans with Disabilities Act, any documentation or other confirmation of vaccination provided by the employee to the employer is medical information about the employee and must be kept confidential and separate and apart from personnel files.
Note, however, that state and/or local law can impact an employer’s ability to mandate vaccines or inquire into vaccination status (in some instances, this can be prohibited by state or local law, and in other jurisdictions it may be required). In Washington, for example, employers must confirm workers are fully vaccinated by having workers either sign a document attesting to their status or provide proof of vaccination before ending mask and social distance requirements for fully vaccinated employees. Gov. Jay Inslee also just announced a vaccination requirement for most state employees, private health care, and long-term care workers.
What incentives, if any, can I offer to encourage more of my employees to get vaccinated?
According to the Equal Employment Opportunity Commission (EEOC), employers can offer incentives to employees to voluntarily provide documentation or other confirmation of vaccination received from an independent third party — e.g., pharmacy, personal health care provider, or public clinic. Employers can also offer incentives to employees for voluntarily receiving a vaccine administered by the employer or its agent, so long as the incentive is “not so substantial as to be coercive.” Although the EEOC does not go so far as to define “substantial,” it explains that “a very large incentive could make employees feel pressured to disclose protected medical information” when responding to the employer’s pre-vaccination medical screening questions. Common incentives include gift cards, cash bonuses, or paid time off.
Have employers been sued over their vaccination and other COVID safety policies? What was the outcome?
Yes—a number of public and private employers have already faced legal challenges over mandatory vaccine policies, but there have only been a handful of rulings in these matters to date. Among the colleges and universities that have been sued over a mandatory vaccine policy, Indiana University has received the only ruling. Eight students sued the university claiming their 14th Amendment right to bodily autonomy and due process was violated by the policy. In denying the students’ request for a preliminary injunction, the U.S. District Court judge held that the school was acting reasonably to protect public health. The students appealed, and the Seventh Circuit rejected a request to enjoin the policy during the appeals process.
Outside of education, many other private employers have been hit with similar lawsuits. To date, there has been only one ruling: in Texas, where 117 workers at a hospital alleged they were wrongfully terminated for refusing the vaccine. The case was dismissed by a U.S. District judge, who held that the hospital did not violate Texas’ wrongful termination law. This ruling is on appeal to the Fifth Circuit.
Where can I find the best available information about workplace regulations and what should I do if Washington state and federal guidance from the CDC are different or even conflicting?
At the federal level, employers should primarily look to both regulations and guidance issued by the Occupational Safety and Health and Administration (OSHA), the EEOC, and the Centers for Disease Control and Prevention (CDC). However, many states (including Washington) and local governments have imposed more stringent or specific COVID-19 related requirements or guidance based, in part, on the infection rates in those jurisdictions. In addition to legal requirements imposed by federal, state, and local laws, employers have a general duty under OSHA to provide a safe and healthy workplace and should generally follow the most conservative guidelines and recommendations applicable to their workplace.
What COVID safety restrictions am I allowed to relax in the workplace, and what should I consider before doing so?
The CDC, OSHA, and many state authorities agree that only those employees who are fully vaccinated can follow relaxed COVID-19 protocols (including taking off face coverings), while those who are not fully vaccinated must continue to observe safety protocols such as mask wearing and social distancing. In Washington, as of this writing, state guidance provides that fully vaccinated employees do not have to wear a mask or social distance at work, unless their employer or local public health agency still requires it. However, before ending mask and social distance requirements, employers must confirm workers are fully vaccinated by either having the worker sign a document attesting to their status or providing proof of vaccination, and employers must be able to demonstrate that they have verified vaccination status for those who are not masked or physical distanced.
However, even where it might be legally permissible to relax safety standards based on vaccination status, it may not always be practical or logistically possible to do so. Enforcing different policies for vaccinated versus unvaccinated individuals may make it obvious who is vaccinated and unvaccinated in the workforce, and employers need to carefully consider applicable privacy laws before rolling out relaxed policies. Disclosure of vaccination status could even inadvertently reveal employee disability issues or religious objections. Such policies can also have the effect of stigmatizing certain groups of employees based on their vaccination status and present employee morale issues.
What do I need to do if some of my employees are either unhappy with new restrictions or still feel unsafe coming into the office?
COVID-19-related policies can elicit strong opinions and have a significant impact on employee morale. Employers should carefully consider the decision to require employees to return to the workplace, and the safety measures and policies the employer will implement in preparation for the return to work. In certain instances, employees may be protected from discrimination if they cannot safely return to the workplace or comply with the employer’s policies due to a protected reason, or if they complain about unsafe practices. However, a general fear of COVID-19 will not suffice for an employee to refuse to come back to work where an employer otherwise ensures a safe and healthy workplace pursuant to all applicable guidance. Yet, as with all employment-related issues during the pandemic, employers should exercise compassion and flexibility when creating COVID-19 policies and clearly communicate the basis for their decisions and the expectations for employees.