As companies are reopening physical locations, employers and their employees are wondering what safety protocols will be required of them upon return. Can employers mandate Covid-19 vaccinations, or proof of vaccination, before employees return to the workplace? Will masks be worn at all times? Williams Parker labor and employment law attorney Jennifer Fowler-Hermes tells us what employers and employees need to know.
Florida employers are legally permitted to require employees who are coming back to the workplace to be vaccinated.
According to guidance issued by the U.S. Equal Employment Opportunity Commission, businesses can require their employees to be vaccinated. However, “companies that do require vaccination should be prepared to address disability or religious-based exemptions or accommodations,” says Fowler-Hermes.
In addition, businesses should be aware that the CDC and OSHA (Occupational Safety and Health Administration) have issued guidance to employers suggesting how to keep the workplace safe. Such guidance is not law; however, there are many benefits to companies complying. For example, a recent Florida law provides protection from Covid-19 lawsuits when certain conditions are met, including whether companies made a good faith effort to comply with recommended federal, state and local guidance.
Employers can legally ask if employees are vaccinated.
There’s a common misconception that HIPAA—the Health Insurance Portability and Accountability Act—exempts employers from asking questions regarding an employee’s health. But this is not true. “HIPAA really has to do with health care providers transmitting patient information among practices,” says Fowler-Hermes. This means that employers can legally ask if employees are vaccinated. They can also ask for proof of vaccination. If employees do not wish to answer this question, the status of their job will depend on whether the employer requires vaccination.
“If there is a mandatory vaccination program and an employee refuses vaccination or is not eligible for an accommodation, they may lose their job,” says Fowler-Hermes. “Most employers I know of are not using mandatory programs, but voluntary ones. Instead, these companies are permitting employees that confirm vaccination to unmask. In this situation, employees do not have to share whether or not they’ve been vaccinated; they can simply continue to wear masks.”
If an employee has a disability, information shared by the employee regarding disability must be kept confidential by the employer.
The Americans with Disabilities Act (ADA) requires that ADA-covered employers not share information about an employee’s disability without consent. “You can ask your workers about vaccination status, however, you should not post a list of employees who are vaccinated,” says Fowler-Hermes. “This could possibly reveal employees who have requested an accommodation due to a disability.”
If an employer has a mandatory vaccination program and the employee wants an exemption based on disability, the ADA requires that employers have to see if there is a reasonable accommodation. If there is not an available reasonable accommodation to the vaccination protocol, the employee may be released from employment. In its Covid guidance, the U.S. Equal Employment Opportunity Commission suggests that reasonable accommodations include continued mask wearing, social distancing, modified shifts or periodic Covid-19 testing.
Religious accommodations to mandatory vaccination programs may also be required under the Civil Rights Act of 1964. Fowler-Hermes warns that companies should have someone capable of handling the nuances of accommodation requests that may be made in response to mandatory vaccination.
Mask-wearing guidelines, for customers and employees, will continue to change.
Current CDC guidance says that if citizens are fully vaccinated, they don’t have to wear masks in any instance. But businesses can make their own rules regarding whether they require mask-wearing of their customers and employees. And private businesses can ask their customers to wear masks, as they are not prohibited from making such requests.
Businesses, such as non-health care facilities, may be able to inquire about whether customers are vaccinated, but in Florida, they cannot require proof of vaccination.
A new law passed by Gov. Ron DeSantis states that business entities—including for-profit and not-for-profit entities—cannot require that patrons or customers provide documentation certifying that they have received the Covid-19 vaccine or that they have recovered from the virus in order to enter a place of business or receive a service.
Employers will continue updating Covid-19 protocols.
Most companies will be dealing with a partially vaccinated workforce and clientele. Fowler-Hermes says it’s up to employers whether to require masks of their employees and customers, and every workforce must take a look at how their business works and how employees interact with each other and with clientele.
“With so much misinformation being shared, especially online, it is important that employers continually update their Covid protocols and keep an eye out for what’s happening with the CDC and OSHA,” says Fowler-Hermes. “One thing that I’ve seen overall with clients is their primary concern has been the health and safety of their employees. They still have to operate businesses and want to make those operations as safe as possible.”