After the World Health Organization declared COVID-19 a pandemic in March of 2020, the laws, recommendations, and best practices around workplace safety were coming at employers at light speed. We were in a heightened alert state and had to learn and understand new processes quickly. As vaccines roll out, we are finding the removal or relaxing of workplace safety issues is similar. There is a lot of information coming at us quickly.
Can I mandate that my employees receive the COVID vaccine?
Some employers may want to require all employees to be vaccinated before returning to the workplace. Although the EEOC guidance does not unequivocally answer whether employers can mandate the vaccine, employees can object to being vaccinated. Employers must engage in the interactive process if an employee cannot get the vaccine due to religious or disability-related reasons.
If an employee cannot receive the COVID-19 vaccine because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, it would be lawful for the employer to exclude the employee from the workplace. This does not mean the employer may automatically terminate the worker, but rather the employer would need to engage in the interactive process to identify a reasonable accommodation.
If employers do mandate the vaccine, they should determine whether they will require it for all positions or only certain positions. Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request. Employees should also be reminded of your accommodation process.
Employers should assess whether the administrative time and attention needed to evaluate each request for an accommodation is something they can manage. Employers should also be prepared for employee relations issues and potential public relations issues that could go along with mandating a vaccine. Therefore, employers should evaluate their workplace to see if mandating the vaccine would be appropriate.
Can I offer incentives for my employees to receive the COVID vaccine?
On January 7, 2021, the EEOC proposed two new rules intended to clarify the extent of incentives employers may provide to employees without violating the ADA or Genetic Information Nondiscrimination Act. These proposed rules were withdrawn on February 17, 2021.
Since then, the EEOC has not published any new rules or provided additional guidance on incentive programs. Despite that, some employers are providing these incentives. Several large companies are offering incentives to their employees to get the COVID vaccine, including American Airlines, Kroger, Target, and Dollar General. Without specific guidance from the EEOC, employers who wish to offer a vaccine incentive must do so in a way that complies with applicable anti-discrimination laws. Employers must also be mindful of their obligations to provide reasonable accommodations to employees who may not be able to receive the vaccine for religious or disability-related reasons.
Can I ask for proof that my employees are vaccinated?
Once an employee begins work for an employer, any disability-related inquiries or medical exams must be job-related and consistent with business necessity. Because there are many reasons why an employee may not be vaccinated, simply requesting proof 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 are “job-related and consistent with business necessity.”
If my workforce is vaccinated, can they work without wearing masks?
Employers should know their state, county, city, and local mask requirements. Similar to the beginning of the pandemic, as we get closer to the end, the mask rules are changing quickly. You may have multiple locations that are under different orders.
On April 3, 2021, Colorado Governor Polis updated the state’s mask mandate. Counties at a Level Green may lift or modify the mask requirement to the extent permitted under the new Executive Order. For counties at all other levels, masks or face coverings are required in public indoor spaces where 10 or more unvaccinated individuals or individuals of unknown vaccination status are present. Places of employment are considered public indoor places.
Regardless of the county, masks are required to be worn in the following locations:
- Preschool through grade 12 schools (including extracurricular activities), child care centers and services, and indoor children’s camps;
- Public areas of state government facilities, and areas in state government facilities where members of the public come into contact with state government employees;
- Congregate care facilities, including nursing facilities, assisted living residences, intermediate care facilities, and group homes;
- Emergency medical and other healthcare settings (including hospitals, ambulance service centers, urgent care centers, non-ambulatory surgical structures, clinics, doctors’ offices, and non-urgent care medical structures);
- Personal services,; and
- Limited healthcare settings.
In New Mexico, the mask mandate has not been updated. Currently, everyone is required to wear a mask when in public except when drinking, eating, or under medical instruction.
The state-wide mask mandate in Utah expired on April 10. Utah Governor Cox extended the mask mandate for state employees and state properties until at least May 31, even for employees who have been vaccinated. Private employers can choose to require masks after April 10, regardless of vaccination status. Per the current Utah Public Health guidance – “you should still wear a face mask and take precautions to prevent the spread of COVID-19 until more people can get the vaccine.”
Wyoming does not have a law requiring paid sick leave to either get a COVID-19 vaccine or recover from the effects of a vaccine.
Wyoming removed its statewide mask requirement on March 16. However, the face covering requirements remain in place in child care facilities, K-12 schools, colleges, universities, and trade schools. While the face covering order remains in place at the specified locations, restrictions relating to the number of students and staff in any room in those facilities have been removed. The latest Public Health Order continues to recommend requiring six foot distancing between individuals to the greatest extent possible, but specifies that public health officials can provide alternative directions for spacing requirements as appropriate, based on the most up to date scientific understanding of COVID-91 transmission. Vaccinated individuals are not among the persons exempted from the requirement to wear face coverings at these locations. Therefore, employees who are vaccinated are not required to wear a mask unless they work at one of these types of facilities, where they remain required to wear face coverings.
Municipalities in Arizona have set their own mask mandates.
Federally, OSHA has stated that it will not be distinguishing between workers who are vaccinated and those who are not. Furthermore, OSHA still holds that vaccinated workers must continue to follow protective measures, such as wearing a face covering.
Do I have to pay for time off for employees to get vaccinated or if they get sick after receiving the vaccine?
Under the American Rescue Plan Act (ARPA), employers with fewer than 500 employees have the option to extend sick leave and expanded family and medical leave under the FFCRA from April 1, 2021, through September 30, 2021. All of the original qualifying reasons to take this leave remain in place, including:
- when the employee is subject to a quarantine or isolation order;
- when the employee has been advised by a health care provider to self-quarantine;
- when the employee has COVID-19 symptoms and is seeking a diagnosis;
- when an employee is needed to care for an individual who has been ordered to quarantine or self-isolate;
- or when an employee is caring for a son or daughter whose, school or daycare is closed due to COVID-19.
ARPA adds additional qualifying reasons, including:
- paid leave provided when an employee is getting the COVID-19 vaccine and/or recovering from an injury, disability, illness, or condition related to the vaccine; and
- paid leave when the employee is seeking or awaiting the results of a COVID-19 test or diagnosis because either the employee has been exposed to COVID or the employer requested the test or diagnosis.
In Colorado, the Healthy Families and Workplaces Act (HFWA) requires all employers to provide paid sick leave, regardless of whether they provide leave under the FFCRA. One of the qualifying reasons to use leave under HFWA is when employees need to leave to obtain preventive care, including time to receive the COVID vaccine. Employers would also need to provide paid sick leave if an employee is experiencing symptoms of the cause of the current public health emergency, COVID-19.
Arizona does not have a law requiring paid leave for employees to receive the vaccine. However, under the Fair Wages and Healthy Families Act, employers are required at minimum to provide 40 hours of paid sick leave. Therefore, employees who get sick from the vaccine can use paid sick leave if they have not already exhausted their paid sick leave.
Utah and Wyoming do not have laws requiring paid leave for employees to receive the vaccine or paid sick leave in the event an employee becomes ill after receiving the vaccine.
New Mexico’s recently passed Healthy Workplaces Act does not go into effect until July 1, 2021. It requires employers to provide paid sick leave for several reasons, including an employee receiving preventative care and if an employee is unable to work due to illness.
Employers are in for a whirlwind over the coming months. No matter how tired we are, it is vital that we understand and follow the rules as we emerge from the pandemic. Employers Council is here to help; feel free to contact us with your questions.