We asked Christine Walters, an employment law attorney and strategic partner who we have worked with for over 20 years to share with us the latest updates on Return-to-Work Strategies and things that employers should consider over these next few months.  As always  consult your Company’s legal counsel for guidance on your workplace issues, yet we hope this offers some guidance to the questions you may have.

Employers, business owners, large and small have been asking questions about how to manage COVID-19 issues in and related to the workplace for more than a year. The frenetic pace may have slowed but remains steady. On May 13, 2021, the Centers for Disease Control (CDC) published updated Guidance addressing recommendations for fully vaccinated individuals.  It includes notice that fully vaccinated individuals may, “Resume activities without wearing masks or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidance.” (emphasis added)

On May 28th, the U.S. Equal Employment Opportunity published its own, updated guidance.  The latter is more specific to the workplace, includes 21 updates, 12 of which are new.  Here is a (brief) sneak peek at some of the more frequently asked questions and the latest answers.

Q: Can employer require all employees who enter the physical workplace to be vaccinated?

A: Yes, so long as you provide a reasonable accommodation under the ADA and Title VII for medical or religious objections, respectively.

Q: Can an employer require all employees to provide documentation confirming that they have been vaccinated?

A: Yes.

Q: Can an employer offer an incentive to employees for voluntarily receiving the vaccination? If so, how much or to what extent?

A: Yes. If the employer or its agent is offering the vaccination, then the incentive, which could be a reward or a “punishment,” should be small enough to not be coercive. That is because the employer or its agent will have to ask and employees will have to answer pre-vaccination disability-related screening questions. So, a very large incentive could make employees feel pressured to disclose protected medical information. But if the incentive is offered for employees to get the vaccine from a third-party provider, such as the employee’s local pharmacy or health department, the limitation on the amount of the incentive does not apply.

Q: Same question as above, but with regard to the employee’s family member voluntarily receiving the vaccination?

A: It depends. Yes, if the family member receives the vaccination from a third party provider. No, if the family member receives the vaccination from the employer or its agent. This would violate the Genetic Information Non-Discrimination Act.

What Else? 

    1. Stay tuned. The EEOC advises us, “On May 13, 2021, the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention (CDC) issued updated guidance for fully vaccinated individuals, exempting them from masking requirements…The EEOC is considering the impact of this CDC guidance on EEOC’s COVID-19 technical assistance provided to date.”
    2. Don’t stop here. Next you need to consider the rules in the state and local jurisdiction where you employ one or more employees. At least two states have now taken action to prohibit employers from asking about, obtaining or using a person’s COVID-19 vaccination status for an employment purpose. Montana has enacted a related law that covers certain private sector employers and Georgia’s Governor has issued an executive order that applies to the State as an employer. Many others loom on the horizon. According to one report, as of March 23rd, at least 19 states had introduced bills prohibiting employers from requiring the COVID-19 vaccine. By April 30th, that number reportedly grew to 32 bills in 25 states, including outside of the employment context.
    3. Remember! Just because the U.S. EEOC says it is permissible to require 100% of your employees who come into the physical workplace to be vaccinated and to require documentation of that fact, your state (or local) law may not permit it.

This article does not constitute the rendering of legal advice. Consult your company’s legal counsel for guidance on your workplace issues. 

Christine V. Walters, JD, MAS, SHRM-SCP, SPHR is a human resources and employment law consultant DBA sole proprietor of FiveL Company, “Helping Leaders Limit their Liability by Learning the Law.”SM