Employers – Reopening Businesses
Employers – Reopening Businesses
The Center for Disease Control and Prevention’s (“CDC”) surprise relaxation of the COVID-19 mask guidance on Thursday, May 13th, puts us on a path to pre-pandemic life for fully vaccinated people. But, employers should consider whether to relax pandemic health and safety protocols at the workplace right now. There are various state and local governmental orders and guidelines that may apply to employer operations, for instance, California guidance to wear masks goes through June 15th. Moreover, an employee ‘catching’ COVID-19 at work can result in unnecessary legal and financial risk for employers.
The CDC announced that anyone that is fully vaccinated against COVID-19[1] does not need to wear a mask or physically distance in most settings, excluding certain settings, like heath care facilities and travel locations. While welcome news, most employers are left to determine how the CDC’s newest guidance will impact workplace COVID-19 policies and practices. Importantly, it does not necessarily change workplace safety measures. In fact, the CDC’s new guidance explicitly states: “You will still need to follow guidance at your workplace and local businesses.” It further states that fully vaccinated individuals may “resume activities without wearing a mask or staying 6 feet apart, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.”[2]
Employers must comply with the most restrictive applicable COVID-19 guidance. So, employers can lift their workplace mask mandate for fully vaccinated workers, IF state and local requirements also allow it. And, workers compensation and other employer insurance carriers are currently considering whether to impose limitations on employers relaxing workplace protocols at this time.
While some states have begun to change guidance in light of the CDC announcement, as of this writing, California has not yet relaxed the guidance and the Occupational Safety and Health Administration (OSHA) has also not yet updated guidance to remove the “suggestion” that employees wear masks and social distance while working indoors. OSHA is reviewing the new CDC information and will reportedly update its requirements soon.
Further, employers must consider employee workplace exposure to persons whose vaccination status is unknown, which may be particularly vulnerable to employees who work with the public. It also requires an individualized safety assessment, which will depend on the type of workplace and workforce involved, as well as an employer’s control over the workforce, including whether the employer can maintain and reliably enforce a policy of somehow verifying vaccination status, while being mindful of employee confidentiality issues.
Employers can inquire whether employees are fully vaccinated against COVID-19, as long as done consistently with the requirements of the Americans with Disabilities Act (“ADA”) and Health Insurance Portability and Accountability Act (“HIPAA”) confidentiality provisions. Employers would need to know which employees are fully vaccinated to know which employees are no longer subject to mask and physical distancing mandates. Employers should consider developing processes to appropriately and securely confirm employee vaccination status for purposes of returning to the workplace.
As noted in prior updates from Epps & Coulson, employers must also treat employee medical information confidentially. While the U.S. Equal Employment Opportunity Commission (“EEOC”) says that employers may ask about vaccination status,[3] but additional or broader employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.” If an employer requires that employees provide proof that they have received a COVID-19 vaccination, the employer may want to warn the employee not to provide any other medical information as part of the proof in order to avoid implicating the ADA.
Many employers designate a key contact responsible for obtaining, confirming, and verifying vaccine information. And, employers do not need to maintain a physical record or copy of a COVID-19 vaccination card. Most employers only maintain a log indicating employee eligibility to be physically onsite.
Even without a vaccine, employees with applicable mask-wearing exemption status should still be granted mask exemptions (e.g. work from home, employee testing or other COVID-safe protocols). Some employers may institute policies that allow employees to work without a mask if they either (1) provide proof of vaccination status, or (2) produce a negative COVID-19 infection test result from a health care provider at regular intervals established by the employer. Any employees who refuse to provide a vaccination status and/or submit periodic negative test results must continue to wear a mask while in the workplace. Employers should still require masks in the workplace for all individuals who are unvaccinated, refuse or prefer not to share vaccination status, or will not get tested.
Employers must also carefully establish enforcement mechanisms for their mask mandate and exemption policies to ensure that only employees eligible for mask exemptions may work without one and that violations of COVID-19 policies are fairly enforced in order to avoid workplace retaliation claims.
Protocols change frequently, especially with the accelerated COVID vaccinations. We’ll keep you updated as matters progress, but feel free to contact us with questions.
[1] People are currently considered fully vaccinated for COVID-19 two weeks after receiving the last vaccine dose (the second one for Pfizer-BioNTech or Moderna).
[2] https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated.html
[3] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
EPPS & COULSON, LLP
Attorneys admitted to practice in
California, New York, Colorado, Texas and Oregon
Information contained in this Memo is intended for informational and educational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney. It is considered advertising. Epps & Coulson, LLP encourages you to call us to discuss these matters as they apply to you or your business. For more information feel free to contact Dawn: dcoulson@eppscoulson.com.