Vaccinations and Masks: It’s Not Over Yet

Now that vaccines are starting to be available, employers are asking new questions:

  • Can I require employees to get vaccinated?
  • Can I require employees who choose or can’t get the vaccine to wear masks as opposed to those who do get the vaccine?
  • Can I ask employees if they have received the vaccine?
  • Can I deny leave to those employees who get sick but who choose not to get vaccinated?

As mentioned in previous articles and most recently in an article published on December 7, 2020: The COVID-19 Vaccine Dilemma, employees can object to being vaccinated. Since employees can object for multiple reasons, this has resulted in a dilemma for employers. In fact, industry surveys tell us that most employers will encourage rather than mandate their employees to get the vaccine. Some surveys are also telling us that approximately 60% of workers will get the vaccine leaving one to speculate that 40% of workers will be vulnerable to the virus. Subsequently, employers are asking, “Can I require those who choose to not get the vaccine to wear masks?” This question assumes that once you get a vaccine, you no longer need to take precautions. That is a false assumption.

Do not assume that COVID-19 precautions will end during/after vaccination efforts. Although vaccination against COVID-19 is key to ending this pandemic, it is not a panacea or cure-all to the current climate. Like other types of vaccine-preventable diseases, precautions are still necessary to avoid the spread of disease to those vaccinated and unvaccinated vulnerable populations. Public health professionals and other experts tell us that even if individuals get vaccinated, it will take some time for the vaccine’s effectiveness to build up, especially in large groups with low vaccination rates. Besides, it won’t prevent COVID-19, and you may still have a mild or asymptomatic infection or spread the virus to others. Individuals are urged to continue with pandemic safety protocols, including wearing masks, frequently washing hands, and practicing physical distancing such as staying six feet apart and avoiding crowds. Although there is a lot that is already known, there are still many unknowns due to the novelty of the disease. As such, it is recommended that employers continue to follow public health guidelines until the experts say otherwise. Please refer to the Centers for Disease Control or your state health department’s website for more information and guidance.

Another trending question is whether an employer can inquire if an employee has received the vaccination. Per the EEOC, simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.  However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.”  If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

If an employee does not get the vaccine and subsequently gets ill, it is ill-advised for the employer to deny them emergency paid sick leave. Such a denial can be perceived as discriminatory and retaliatory, both of which violate state and federal employment discrimination laws. It is in the employer’s best interest to provide education on the benefits of receiving a vaccination and/or incentive to receive a vaccination if possible, along the lines of employers who have offered incentives for flu shots for years.

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