On Thursday, May 13, 2021, the Centers for Disease Control and Prevention (CDC) broadcast welcome messages for vaccinated individuals in the form of revised preliminary public health recommendations for fully vaccinated individuals. The new guidelines contain: “[f]Individuals who are fully vaccinated can resume their activities without wearing a mask or physically distancing themselves unless required by federal, state, local, tribal or territorial laws, rules and regulations, including local company and workplace guidelines. “In general, a person is considered fully vaccinated two weeks after the second dose of a two-dose series vaccine or two weeks after the first dose of a single dose vaccine.
With this announcement, employers are likely to re-evaluate their workplace mask guidelines. In doing so, they not only have to take into account the CDC recommendations, but also other legal standards and guidelines, such as B. State and local laws and guidelines issued by the Equal Employment Opportunity Commission (EEOC) and the OSHA. . For example, in California, LA County public health officials reacted quickly to CDC guidelines by stating that companies must continue to adhere to workplace distancing and masking requirements until the California Department of Occupational Safety and Health changes its guidelines. Likewise, employers should consider that the federal OSHA’s current guidelines, which have remained unchanged since January, identify the wearing of masks in the workplace as a safety measure.
Here are some key questions and answers employers should consider to help them move forward.
1. Can fully vaccinated employees do without a mask when meeting unvaccinated employees?
Yes. The new CDC guidelines state that “fully vaccinated individuals can resume activities without wearing a mask or physically distancing themselves,” subject to applicable laws, regulations and workplace guidelines. Therefore, vaccinated employees may be allowed to attend meetings with unvaccinated employees without the vaccinated employees wearing a mask. The CDC’s position is based on the vaccine’s effectiveness in protecting vaccinated workers from symptomatic and severe COVID-19, as well as the “growing body of evidence” suggesting that fully vaccinated people are less likely to transmit the virus to others. Overall, a fully vaccinated employee poses a low risk for an unvaccinated employee.
2. If an employer allows fully vaccinated workers to be in the workplace without a mask, should they require proof of vaccination?
May be. While many employers will feel comfortable relying on the “honor system”, employers should consider requiring proof of vaccination from workers who do not wear a mask in the workplace. The requirement of proof of vaccination for employees without a mask could be a way for the employer to prove that he offers a safe job. For many employers, this requirement means a significant change in their approach to the vaccine. Employers recognize the potential of certain laws to imply privacy concerns and may wish to describe the policy as a voluntary disclosure of vaccination status. This means that employees only need to present proof of vaccination if they want to be mask-free at the workplace.
3. Can an employer require stickers, pins, ID cards or other identification documents for vaccinated workers in the workplace?
May be. Depending on factors such as where you work and how information is collected, disclosing employees’ vaccination status may violate confidentiality rules for medical or personal health information. There are a variety of federal, state, and local laws and regulations that affect an employer’s obligations to maintain the confidentiality of certain employee information, including the American With Disabilities Act (ADA), the genetic non-discrimination act Information (GINA), the Family and Medicine Vacation Act (FMLA), and Health Insurance Portability and Accountability Act (HIPAA).
The ADA requires an employer to maintain the confidentiality of information obtained through a medical examination and / or examination of an employee. This information must be “collected and kept on separate forms and in separate medical records and treated as a confidential medical record, with the exception that: (i) Supervisors and managers can be informed of necessary restrictions on the work or duties of the employee and accommodation is necessary ; (ii) First aid and security personnel may be notified if the disability requires emergency treatment; and (iii) government officials investigating compliance with this part [of the regulations] relevant information will be made available upon request. ”
In its Technical Assistance Questions and Answers: What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and other EEO laws (last updated in December 2020), EEOC recommended asking a staff member or requesting proof Receiving a COVID-19 vaccination is not a disability-related investigation. The EEOC warned employers not to ask any further questions, such as: For example, asking why a person was not vaccinated as this question may contain information about a disability and is governed by the ADA standard that a request is “work-related”. related and in line with business need. ”
Accordingly, unless further guidance or decisions to the contrary have been made, information on vaccination status alone should not be subject to the confidentiality requirements set out in the ADA, as it was not obtained through a medical examination and / or examination of an employee. The analysis should not end there, however. An employer must review applicable state and local laws and regulations. For example, some states have explicit regulations governing the collection, storage, and use of medical information from employees by an employer. In addition, certain state laws regulating data protection and data protection violations regulate the storage and release of medical information. In addition, state data protection laws could come into force. If an employer receives information about vaccine status through a health care provider or health plan, rather than directly from the employee, the confidentiality requirements of HIPAA may be implied.
As mentioned in the answer to question 2 above, an employer wishing to implement an identification system can reduce the risk by using a voluntary disclosure policy. If a vaccinated employee prefers not to inform the employer of the employee’s vaccination status or to wear the ID, the employee simply continues to wear a mask in the workplace.
Employers may also consider reporting that the lapel pin / sticker / badge indicates that an employee has been classified as mask-free in the workplace rather than the employee has been vaccinated. While the distinction may seem minor, it could be important in the context of a challenge to the employer’s confidentiality practices. For example, because there are a small number of unvaccinated employees with disabilities who have requested and approved reasonable accommodation for not wearing a mask, the fact that an employee can be identified as not being allowed to wear a mask does not automatically This corresponds to the disclosure that the employee has been vaccinated.
4. Will government laws affect how employers respond to these new CDC guidelines?
Possibly yes. Many states have introduced bills into legislation to prohibit “vaccination passports” or other inquiries regarding a person’s vaccination status. In Florida, Governor Ron DeSantis has already signed a law prohibiting companies from requiring customers to provide evidence of vaccinations – although this law does not appear to regulate the relationship between employer and employee. In fact, the only bill passed by state legislature that would explicitly regulate employer-employee vaccine passports was in Wisconsin – and Governor Tony Evers vetoed the move.
It is important to note that laws are currently pending in some states that expressly prohibit employers from discriminating against employees on the basis of their vaccination status. For example, a bill introduced into Texan law and currently pending on the committee would specifically amend the state’s anti-discrimination law to prohibit any prejudicial employment activity against an employee based on vaccination status. While this Texas bill may not become law, the proposal shows what we should expect in some future legislation.
In addition to the proposed laws, a number of states, including Montana and Texas, have had executive orders from governors prohibiting state and local government agencies and some private sector companies from requiring vaccination certificates. However, these orders do not appear to regulate the relations of private sector employers with their employees.
Efforts to place government restrictions on employers are likely to intensify with these new guidance from the CDC. Any employer attempting to respond to these new guidelines to determine which of their employees have been vaccinated, or impose different standards on vaccinated and unvaccinated employees, must carefully monitor developments in state law to ensure that their plans do not run counter to any government legal restrictions.