Submitted by Assurance

With mask mandates loosening, vaccine accessibility increasing and employers deciding how to get “back to normal,” there are a lot of questions. We recently hosted an Assurance University Webinar to provide employers with answers. We also highlighted a few of the top Q&As below.

Which guidelines do I need to follow? Federal, state or local?

When developing a return-to-work policy, employers must first look at federal, state, and local guidance. OSHA and other government agencies haven’t released any timelines as to when or how often guidelines will be updated, so employers will need to routinely check to confirm their policies continue to remain in compliance. Employers also need to ensure they are adhering to all applicable guidelines and regulations. This means that if an employer is in an industry that requires compliance with a more stringent face covering guideline or distancing guideline than a local guideline, they should comply with the stricter one.

Can I ask employees for proof of vaccination? Is this a violation of HIPAA?

After reviewing current guidelines, employers must determine how they wish to handle face coverings and vaccination status requirements. The EEOC has clarified that employers can ask if employees have been vaccinated and may require proof of vaccination. However, they should be cautious about asking anything beyond that and clearly state that only proof of the vaccination is required, likely through an employee attestation or copy of a vaccination card, but that no other medical information should be obtained. This is not a violation of HIPAA, as the information isn’t being requested in relation to the health plan. On May 28, 2021, the EEOC clarified that vaccination status is medical information, so confidentiality should still be maintained and the records should be retained with other employee medical information.

Can anyone ask employees about vaccinations, or is it limited to the HR team?

Employers should also avoid asking questions such as “how was the vaccine?” or “did you have any side effects?” Additionally, they should consider who they want to allow to be asking and/or requesting this information from employees. Generally, it would be recommended to have the personnel who is trained to handle medical information receive the vaccination status information from employees. From there, they can let supervisors know which employees have the option to wear a mask and who don’t. The information must not be used negatively, and employers and management should make it clear that harassment between masked and unmasked individuals won’t be tolerated. There are various reasons that vaccinated individuals may still choose to wear a face covering, even if policy does not require them to.

Is it sufficient to use the honor system for allowing employees to forgo wearing masks in the office?

In some cases, employers are opting to rely on the honor system for allowing vaccinated employees to not wear a mask. Ultimately, the decision comes down to risk tolerance. Having a protocol or some level of verification in place helps an employer demonstrate that they have abided by safety guidelines for their employees. Barring any industry requirements, employers may allow employees who have been vaccinated to discontinue face coverings. It’s important to note that the CDC guidance doesn’t indicate that individuals who have had COVID-19 but have not been vaccinated can also go without a face covering. The guidance only pertains to those who are fully vaccinated.

Can I require employees to get vaccinated? What about using incentives?

Employers must also decide if they plan on requiring vaccinations or not. Requiring vaccinations does have more risk for the employer, in the event of an adverse reaction. At this time, many employers are opting instead to educate employees on vaccinations, providing time off for the vaccination or offering small incentives aligned with EEOC guidelines to employees who get vaccinated.

What if an employee refuses to come to work and asks for an accommodation?

Some employees may be unable to be vaccinated or, even with the vaccination, may not be comfortable returning to the physical office. Employers should consider each scenario on a case-by-case basis. The CDC has a list of conditions that would make someone a high-risk individual for COVID-19. If an employee falls into one of those categories or is otherwise covered by the ADA, employers should follow ADA interactive process to determine the proper accommodation for those employees.

If an employee requests an accommodation, employers should use their standard accommodation request process. If they don’t have a process or forms to utilize, they should visit the Job Accommodation Network website and/or consult legal counsel to avoid requesting unnecessary information. Generally, just a refusal to return to work isn’t a valid reason for an employer to have to accommodate an employee. For concerned employees, it’s important to provide sound information on safety protocols and procedures to help ease their mind about returning to work. In many cases, safety concerns can be overcome with clear and consistent communication with employees.

Once employers have drafted their return-to-work guidelines or amended existing guidelines, they should clearly communicate the policy, guidelines and expectations to their employees. As with any policy, employees who fail to abide by the policy may be subject to disciplinary action.

As with most topics related to COVID-19, this is an ever-evolving subject that employers should continuously monitor to ensure their policies remain in line with applicable laws and guidance.

To learn more, watch our recent Assurance University Webinar Replay, COVID-19 Employment Issues: Returning to Work and Vaccines.