New Insights on COVID-19 Vaccine & Testing Requirements in the Office

New Insights on COVID-19 Vaccine & Testing Requirements in the Office

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COVID-19 vaccine rates have soared in recent weeks, providing hope to workplaces across the country that they may soon be able to resume normal operations. But it’s probably not a great idea to start burning your masks just yet.

Here are our answers to common COVID-19 vaccine questions that companies are contemplating as more employees return to the office and the world opens back up.

Q: Can I require employees to be tested after they have been exposed to someone with COVID-19?

A: Yes, you can require COVID-19 testing – and proof of a negative test result – for employees who will be coming into contact with others. With the widespread availability of the vaccine, however, you may want to modify your COVID-19 policy to waive the quarantine requirement for employees who can prove they are fully vaccinated, as long as they have no symptoms. The same is true for asymptomatic employees who had COVID-19 within the three months prior to their exposure.

Remember that you must keep all test results and proofs of vaccination in confidential files, and you may not share them with people outside the HR team. Keep an eye on the CDC guidelines for isolation period length and guidelines for fully vaccinated people, as the recommendations are likely to evolve over time.

Be sure to document your policy and make employees aware of it before it becomes an issue for them.

Q: Can I require employees to be vaccinated?

A: In general, the answer is yes but there are a number of considerations. First, you should consider the extent to which your employees have close exposure to clients or the public. If you believe the risk is high, you may have grounds to require the COVID-19 vaccine. But be sure to clearly document your rationale and provide accommodations for those who don’t want to be vaccinated due to a disability, religious beliefs or pregnancy.

For those requesting accommodation, you can ask for medical documentation and work on assisting them while protecting the safety of others. For example, you can give them a private office or ask them to work from home if possible. You also can require them to stay away from common areas or use higher quality personal protective equipment. You may be able to assign them to a different position that has less exposure to others, but be careful with that option; it could be perceived as retaliatory.

If you can’t provide accommodation and decide to lay the employee off, be sure to carefully document your rationale. We recommend consulting the EEOC’s guidance on this topic.

You also have a lot of room to encourage employees to get the COVID-19 vaccine, as you may already do with the flu vaccine and other preventive health measures. Whether you require or encourage vaccination, documentation and communication of your policy are critical.

Finally, train your supervisors and clarify who should have the vaccine conversation with employees. If possible, it’s best to have HR engage in those discussions.

Q: What should I consider when changing my policy?

A: The pandemic situation is changing constantly, so you want to stay flexible. Keep up with the news and CDC guidelines as you assess the risk to your operations. You can always change your policy; just be sure to document, communicate and provide training about the change.

Q: Can I ask employees if they have been vaccinated?

A: Yes, you can ask employees if they have been vaccinated for COVID-19. In fact, that’s probably a good idea as you assess return-to-work plans. We’ve seen several employers do this through an anonymous survey. Just avoid asking employees why they are not vaccinated. Employees are only required to share their reason if you have a mandate and they request an accommodation allowing them to return to work without being vaccinated. In that case, they will need to provide documentation, such as a doctor’s note or a letter from their religious organization, that they have a need for accommodation.

If you do have a mandate, you can require employees to provide proof of their vaccination.

Q: Can I ask employees to wear identification that indicates their COVID-19 vaccination status?

A: That’s probably a bad idea. Such designations only invite conflict in the workplace and probably violate more than one law regarding the confidentiality of employee health information.

Q: Can I have different policies for employees who are vaccinated or have already had COVID, such as allowing them to go without a mask at work?

A: We don’t recommend it. Most health experts caution that the country is not yet prepared to fend off another surge, particularly with the increasing incidence of new COVID-19 variants that appear to be more contagious than the original strain. For everyone’s protection, it’s best to keep consistent with your policies for social distancing, mask-wearing, workplace disinfection procedures, etc., regardless of vaccination status.

By Julie Athey, J.D., Director of Compliance, The Miller Group

See also:

An Employer’s Role In Supporting COVID-19 Vaccine Distribution
COVID-Inspired FSA Provisions Offer Increased Flexibility For Employees
COBRA: Common Mistakes, Oversights And COVID Effects

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