May 26, 2021
As employees return to the workplace and CDC guidance evolves, employers are considering how to incorporate new guidance for fully vaccinated employees and how that impacts non-vaccinated employees and workplace safety considerations.
Recently, on May 13, 2021, the Centers for Disease Control and Prevention (CDC) issued new guidance for employers outside of health care further delineating between the “fully vaccinated” and all others. Employers around the country are grappling with the impact of this increasing gap in treatment between the two groups as more and more people are eager to return to work and their normal lives.
Significantly, the CDC now recommends that “fully vaccinated” people:
Fully vaccinated people who are experiencing symptoms of COVID-19, however, should continue to follow isolation protocols until they are tested to confirm that they do not have COVID-19.
After this latest update, employers will have questions regarding what rules and recommendations they should follow and what policies are best for their workplaces. Many employers are considering more seriously and rethinking whether to mandate vaccinations given the stark contrast in treatment between the fully vaccinated and all others.
Because all employers are subject to occupational safety and health (OSH) laws, the following considerations are important to analyze before implementing changes to workplace restrictions or vaccination programs based on the latest CDC guidance:
Yes. The EEOC has stated that employers may require employees to show proof of being vaccinated against COVID-19, but should not ask follow-up questions that might elicit information about a disability and then would be subject to the ADA “job-related and consistent with business necessity” standard. State agencies (such as the California Department of Fair Employment and Housing) have yet to affirm this approach as California typically has departed from the EEOC in requesting medical information for accommodation purposes.
Employers should be cautious about requiring employers to provide a copy of their vaccination card or other documentation showing vaccination status. Where maintaining a copy, as opposed to viewing the document but not taking a copy, is necessary for a business purpose, then employers should maintain the documentation in a separate file as it would with any medical information under the ADA. Employers should be aware of any state or local requirements regarding documentation of vaccination status and consult counsel with any questions or concerns as they navigate the federal and state requirements.
Generally, employers may have any workplace policy they need for business purposes so long as the policies do not discriminate based on membership in a protected class. Therefore, employers may have different requirements for vaccinated and unvaccinated employees so long as those policies take into account and make reasonable accommodations for employees who cannot be vaccinated because of a disability and/or religious beliefs. In preparing these policies, however, employers should consider both what is permitted and also the impact of new policies on employee morale and productivity.
There are considerations such as: (1) employee comfort level working with and near others who are not wearing masks; (2) employees’ ability to work effectively in groups with vaccinated and unvaccinated individuals where there are different requirements for the groups, etc. Some employers have convened task forces that include employees from all levels in the business and who represent different positions on vaccinations to help develop workable policies and education for employees as businesses adjust to the “new normal” with COVID-19. OSHA (federal and state) tend to support efforts to involve employees in the discussion for “what makes sense” for their workplace.
It is unclear whether an employer can require an employee to disclose their vaccination status to other employees, such as by labeling badges for vaccination status. While being able to differentiate between the vaccinated and all others would streamline enforcing mask and other requirements for unvaccinated people in the workplace, such requirements might implicate employees’ privacy interests in their medical information and decisions and could stigmatize those who are not able to get vaccinated, raising potential ADA issues for persons with disabilities or certain religious beliefs. Employers should consider the business necessity for such a policy, whether the policy is consistent with that necessity, and what, if any, reasonable accommodations may exist.
This employment alert is just part of the overlapping web of issues facing businesses as a result of the COVID-19 pandemic. Our Nixon Peabody team will continue to provide updates on other issues facing employers and solutions to assist them in navigating these quickly evolving times.
To learn more about the latest CDC guidance changes and what to expect from OSHA as well as state OSH laws and regulations, please register for our webinar “Impactful Solutions: Understanding New COVID-19 Guidance and Rulemaking Impacting Workplace Safety” on June 16, 2021, at 10:30 a.m. PST (1:30 p.m. EST).
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
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