Can an employer require employees to be vaccinated before returning to work? That's just one of the workplace safety issues Nixon Peabody attorneys Benjamin Kim and Rachel Conn discuss in this post-COVID-19 workforce conversation. Listen as they examine some of the legal issues employers must consider, from vaccine requirements to face-coverings and even the communal candy bowl's fate (if you have a sweet tooth, it doesn't look good).
This transcript has been edited for length and clarity.
David Kaufman: The question on lots of people's minds is, can an employer require all their employees to be vaccinated before coming back to work?
Benjamin Kim: It's definitely something that employers can do. Things like a mandatory vaccination program may change as we get more guidance from federal, state, or local governments. What about exemptions? What if a group of employees can't get vaccinated or what if they refuse? There are some difficult questions you have to think about before you implement a mandatory vaccination program.
Rachel Conn: If you are a health care employer or a hospital, there are certain state laws on the books regarding providing vaccinations to employees. And, some of those require that you provide vaccinations to your employees, but also allow them to decline.
David: Can employers make exceptions for folks that are working remotely?
Ben: What does it mean to be mostly working remotely versus working remotely full-time? The work environment is going to change post-COVID-19 after people get vaccinated. There are going to be employees who are going to want to work from home exclusively. What do you do in that situation, where employees say, “I don't want to take the vaccine,” but you're requiring it in order to return back to work in the office?
Rachel: Employers who are deciding to not go the mandatory route also have to think through if they have clients in, or their employees have to go to, certain areas where a vaccine may be required. There's talk about courthouses, for instance, requiring vaccines for attorneys. Let's say a law firm doesn't necessarily mandate vaccines, but building into even a voluntary program, a potential situation where maybe a client requires you to be vaccinated before coming to their office or the courthouse requires it, what is your policy is going to be there?
David: Can I require that my employees have to wear masks when they're in my office?
Ben: Yes, you can require it, and we probably should require it, even for people who are vaccinated. As Rachel mentioned, you might have third-party visitors that come to the office, and they may not have been vaccinated. You may have vendors, contractors that come by to refill the coffee machine or the snack machine. People who drop off the mail. I don't think that wearing masks, social distancing is necessarily going to go away, even with the vaccine. One of the things that we've been seeing in recent CDC guidance is relaxing of those standards. Employers can opt to loosen restrictions, assuming their entire workforce is vaccinated. But, again, we've talked about this before, there may be some groups that don't get vaccinated for legitimate reasons or as a matter of preference. What do you do in that situation when not everybody in the office has been vaccinated? Are you going to follow these measures?
Rachel: I think this a particularly hot topic with states like Texas that have recently gotten rid of a mask mandate. We get calls from employers saying their state no longer has a mandate, can they mandate it? Yes, there may be accommodations that potentially need to be made, somebody cannot wear a mask, and there are certain other accommodations, like a face shield with a drape, for instance, that may be appropriate reasonable accommodations for situations like that.
David: What are some best practices as far as workplace hygiene? What are you recommending your clients to do to keep their workplace safe post-lockdown but not post-COVID-19?
Ben: I think first, you’ve got to look at what OSHA would call engineering controls. What have you done to upgrade the ventilation system in your office space. I've heard of employers moving toward hands- free faucets, hands-free soap dispensers, hands-free dryers in the bathroom, hands-free door openers. You're no longer touching handles everywhere you go. Those are things that people are considering to reduce the number of touch points in an office space.
Remember, the trend before COVID-19 was more collaborative workspaces. We're going to leave out bowls of candy and food and let people congregate and collaborate in shared workspaces. Well, COVID-19 has told us maybe that's something you’ve got to think about because, even after COVID-19 is gone, who knows when the next epidemic or pandemic is going to hit. COVID-19 is not the first one and it won't be the last. If COVID-19 has taught us anything, it really got people to think of communicable diseases in a different way. Do we need a pandemic response plan? Do we need a communicable illness response plan, not required under OSHA regulations, as a matter of good practice as part of your handbook? Do you want to have procedures in place when there is a communicable disease threat in your workplace?
David: It all sounds like bad news for people with sweet tooths, Ben. So, I'm sorry to hear that.
Ben: Just buy those individually wrapped candies. Don't share them and don't hand them out.
David: Rachel, what do you think is a good thing that people should be thinking about in this new year of work?
Rachel: Everyone is getting very excited now. We hear vaccines are rolling out. We hear that anybody who wants a vaccine will be able to get one by the end of May. But another thing to remember is that certain states still have regulations on the books. States still have regulations that are in effect until they're amended or overridden by executive order. People still need to take those regulations into consideration until they're changed.
Also, remember that Fed OSHA, now under the Biden Administration, is really thinking about taking a more aggressive approach to COVID-19. They are looking at releasing their own COVID-19 regulations soon. There may be a whole other set of regulations—federal regulations—employers are going to have to comply with as part of any reopening or return-to-office protocols.