Pandemic Recovery Tips & To-Dos: Workplace Policies and Communications

Mandatory vs. voluntary vaccination? Most of our clients and employers throughout the country have decided to encourage workers to be vaccinated, but they have not made vaccination mandatory.  The EEOC has issued guidance indicating that an employer may make vaccinations mandatory.  However, if an employer decides to make vaccinations mandatory, it’s important to be aware of exceptions.  If an employee objects to a vaccine on the basis of a disability, an employer has an obligation under the ADA to engage in the interactive process.

In addition, if an employee also has a religious-based objection, then you have an obligation to engage in the interactive process.

Tip:  Consider mandating vaccination only when absolutely necessary given a worker’s job functions and interactions with clients/customers. Consult counsel if considering a mandatory vaccination program.

What about incentives for employees to get vaccinated?  Some of my clients have inquired about whether incentives (e.g. gift cards, extra PTO days) are permissible to provide employees as encouragement to get the COVID-19 vaccine. 

Tip:  The EEOC’s guidance is not yet clear on which vaccine incentives may be allowable, so employers should consult counsel if they are considering incentives for employee vaccination.

What about face coverings?  As you may know, the CDC has stated that individuals who are fully vaccinated do not need to wear masks in any setting.  But California has not yet changed their masking guidance for fully vaccinated workers.  

Tip: Employers may set their own workplace masking policies, and they must follow all local and state rules on masking.  In a California workplace, employers subject to the Cal/OSHA COVID-19 Emergency Temporary Standards (ETS), must ensure that all workers are provided and properly wear face coverings as required by the ETS. 

What about asking about vaccination status?  It is important to be very cautious in asking an employee about vaccination status because it could lead to medical disclosures, and raise concerns under the Genetic Information Nondiscrimination Act (GINA).  For example, an employee undergoing chemotherapy treatment may have been advised by a physician not to receive the vaccination. 

Tip:  An employer may ask about vaccination status, but an employee should never be asked why they have not received the vaccine – the question should be a simple “yes” or “no.” It is important to consult counsel before distributing vaccination questionnaires.

COVID-19 Workplace Policies to Review NOW

Employers should review COVID-19 policies and workplace communications to address:

• Vaccination

• Return-to-work timeline and protocols

• Amended remote work policies

• Revised quarantine requirements for asymptomatic, fully vaccinated workers

If you need assistance drafting these policies and workplace communications, schedule a consult here.