As vaccine distribution becomes widespread, and employees begin to return to work, we continue to field questions related to return-to-office plans in a post pandemic world. We previously compiled a list of FAQs, addressing COVID-19 safety protocols ( here, here and here) that should be considered as the workplace opens for business. Below are some additional, and recent, considerations related to this topic.
1. When employees begin returning to the office, can we require employees who have not received the vaccine to stay home and continue to work remotely?
Generally speaking, yes. Based upon EEOC guidance, an unvaccinated employee may pose a direct threat to others in the workplace. As a result, employers can likely require an employee to work remotely if they have not yet received a COVID-19 vaccine-as long as such requirements are consistent with the employer's obligation to provide reasonable accommodations under state and federal laws, including the ADA and Title VII.
Employers can legally ask their employees whether they have been vaccinated or not. However, legal concerns may arise if an employer inquires into an employee's decision to not receive the vaccine. Under the Americans with Disabilities Act (ADA), an employer's questions must be "job-related and consistent with business necessity." Thus, additional inquiries by the employer are likely not permissible.
Any COVID-19 policy must yield to and comply with federal and state workplace laws, including the ADA and Title VII of the Civil Rights Act of 1964 (Title VII). The policy must accommodate employees with disabilities and employees with sincerely held religious beliefs. If the workforce is unionized, the employer may also need evaluate its current CBA and/or negotiate with the union before requiring a vaccine. Similarly, numerous states have recently introduced legislation to prevent employers from discriminating against employees who choose not to be vaccinated. Husch Blackwell continues to provide up-to-date coverage of state and local COVID-19 legislation here.
2. To promote a healthy and safe workforce, can employers establish separate workspaces for vaccinated and unvaccinated employees?
Initially, in the ever-changing world of COVID-19 infection rates, employers should continue to follow the guidance established by the CDC and state/local health departments to determine risks posed to their workforce. The CDC currently states that fully vaccinated individuals can socialize with other fully vaccinated individuals as well as unvaccinated individuals with low risks for severe COVID-19 reactions without wearing a mask or social distancing.
It is still recommended, though, that even fully vaccinated individuals take precautions while in public settings, including work: wear a face mask, practice social distancing, etc. Therefore, employers should develop a return-to-work policy that contemplates safety precautions (i.e. when employees should wear masks and in what areas, etc.) for all employees.
In regard to the physical separation of vaccinated and unvaccinated employees, employers should exercise caution when electing to implement such a policy to avoid disparate impacts upon individuals requiring accommodations. Additionally, any such policy will need to be justified by a business necessity.
Ultimately, this is a question of can and should. Can an employer establish separate workspaces? Possibly, if it does not result in different treatment of those requiring accommodation and is justified by a business need. Should an employer implement such a policy? Probably not, as it invites possible claims and may negatively impact employee morale.
3. If an employee travels, what safeguards need to be taken? Can there be different safeguards for individuals who have been vaccinated?
With summer vacations approaching, this will likely become a more prevalent consideration for many employers moving forward. Based upon current EEOC guidance, employers can devise appropriate safety protocols related to travel in light of the direct threat posed by COVID-19. And, generally, employers can develop varying company policies depending on whether the worker has been vaccinated or not based upon current CDC guidance.
However, employers should strongly consider state and federal workplace laws, and the potential unequal impacts of any such policy. In addition, employers should also assess the negative effects of implementing different workplace rules for vaccinated and unvaccinated employees-such as harming workplace morale and invite complaints of unfair treatment.
According to the CDC, fully vaccinated travelers are less likely to contract and spread COVID-19. Thus, those that are fully vaccinated can safely travel within the United States without self-quarantining and getting tested before or after travel. The CDC also provides travel recommendations for travelers who are not fully vaccinated. It is recommended that unvaccinated travelers get tested three to five days after travel and self-quarantine for up to seven days. If a traveler does not get tested, it is recommended that the traveler self-quarantine for at least ten days after travel.
As discussed, employers can legally ask whether an employee received the vaccine. Likewise, an employer can also require employees to disclose work-related as well as personal travel plans, provided the inquiry is equally applied to all employees and consistent with business necessity. Hence, a reasonable safety protocol might require all employees to report whether they have been vaccinated and their travel plans. An employer could also require all employees to confirm that they are not experiencing COVID-19 related symptoms before returning to work after travel.
Originally published 15 April 2021.
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