The past 18 months have been particularly challenging for employers navigating the pandemic, and as more employees get vaccinated and return to work in-person, the challenges will continue. While the vaccine roll-out is promising for a return to normalcy, employers are now struggling with new questions: Can an employer ask about an employee’s “vaccine status?” Can an employer require employees to be vaccinated? What steps should an employer take to protect employees from COVID-19, and will that differ between vaccinated and non-vaccinated individuals?
Federal regulators have released new and updated guidance on the issue over the past couple of weeks to assist employers with these questions, though the appropriate response from an employer will depend on the employer’s industry and potentially the employer’s location.
On Monday, June 21, 2021, the Occupational Safety and Health Administration (OSHA) published its new COVID-19 Emergency Temporary Standard (ETS) in the Federal Register. The ETS contains new requirements for employers in healthcare settings. On June 10, OSHA also released guidance for employers in non-healthcare settings.
- Application is limited. The ETS applies to employers in healthcare settings only, and the additional guidance for employers in non-healthcare settings is not mandatory – but still important to consider when updating policies for returning to in-person work. OSHA has released a flow chart to help employers determine whether the ETS applies.
- Employers in the healthcare setting have a deadline to comply. The ETS is lengthy, detailed, and effective immediately on Monday, June 21, 2021, when the rule was published in the Federal Register. For most requirements, the deadline will be 14 days after publication (July 6, 2021). For other requirements, it will be 30 days after publication (July 21, 2021). Employers in the healthcare setting should begin preparing to comply with the ETS now. OSHA will have discretion on whether to enforce the ETS against employers who are making a good faith effort to comply.
- Vaccine-status plays a role for employers in a non-healthcare setting. The ETS does not address whether an employer in the healthcare setting can require employees to get the vaccine. However, the guidance for employers in a non-healthcare setting provides that most employers do not need to enforce COVID-19 control measures (like masks and social distancing) for most fully vaccinated workers. This presents some interesting issues and challenges for those employers who may have both fully vaccinated and non-vaccinated workers in the workplace.
On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) posted updated and expanded guidance, which is the first comprehensive update of EEOC guidance since the end of 2020, when vaccines first became broadly available. The new guidance discusses how the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) apply in the context of COVID-19 and in considering the new vaccines.
- With certain limitations, an employer can lawfully require its employees to obtain a COVID-19 vaccination as a condition to returning to in-person work. If an employer takes this approach, it must apply the policy in a non-discriminatory manner and be conscious of the impact the policy may have on certain categories of protected workers. The employer must also make reasonable accommodations for employees who have not been vaccinated because of a disability or sincerely held religious beliefs, practices, or observances.
- Watch for Updates. The EEOC has indicated that this new guidance was prepared before the CDC’s updated stance that masks and social distancing are no longer required for individuals that are fully vaccinated.
- The EEOC’s guidance is limited to the application of federal civil rights laws. Employers should also be aware of state or local laws that may limit the EEOC guidance’s application or would otherwise alter the employer’s approach.
The attorneys at Chilivis Grubman represent clients of all types and sizes, including employers in the healthcare industry. If you are an employer and need assistance with compliance with federal regulatory guidelines on COVID-19, please contact us today.