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COVID-19: Need a back-to-office primer?

COVID-19: Need a back-to-office primer?

Allison DavisAMARILLO, Texas – Employers that are calling on employees to return to the office need to navigate a number of “sticky subjects,” including whether they can require them to get vaccinated and wear masks. Allison Davis, a shareholder and employment law attorney at Brown & Fortunato, answers those questions and emphasizes why it’s important to stay up to date on changing guidelines. 

HME News: Can employers require that employees get vaccinated? 

Allison Davis: You can, as an employer, require your employees to get vaccinated. But I will tell you that most of my clients, even those in the medical field, are choosing not to do so. There are exemptions for anyone with a religious belief and anyone with a disability, and frankly, dealing with exemptions is a headache, because you can really get in trouble in a hurry. I also think the general stance is that employers don’t want to mandate anything medical-related for their employees. Most are encouraging their employees to get vaccinated and some are even providing a gentle nudge by providing an additional day of PTO or a gift card. I know there’s information out there saying giving something of value is OK, but I haven’t given that advice. You could end up in a situation where you’re withholding something of value based on someone’s protected class. 

HME: So, if it’s in some ways impractical to require vaccines, should employers require employees to wear masks? 

Davis: Right now, masks are the stickier subject. As you know, there has been new guidance from the CDC that fully vaccinated individuals don’t need to socially distance or wear masks or even quarantine after exposure in most instances. That has pushed a lot of states and cities to lift their mask mandates. I’m working with a lot of clients dealing with if they’re going to change their mask policy and how. You can have two sets of rules: Fully vaccinated don’t need to wear masks; unvaccinated need to wear masks. That’s legally permissible. 

HME: Sounds pretty clear. Why is this “sticky”? 

Davis: Where it gets sticky is tracking who has been vaccinated, because employers should always ask for the bare minimum amount of medical information. Do you just ask someone to verify their vaccinated status? Do you take a copy of their vaccine card? If it’s the latter, how do you store that information because it is confidential? Every layer opens up a new set of potential issues. That’s why I have one client who has completely lifted the mask mandate at their place of business. They feel everyone has now had the opportunity to get vaccinated and if they chose not to that’s their choice and their risk to accept. 

HME: Can an employee refuse to say whether they’re vaccinated or not? 

Davis: It is important to keep in mind that, while you can ask, if they refuse to answer, you don’t want to follow up, because you’re potentially digging into a religious belief or disability issue.  

HME: You spoke of the recent changes to CDC guidance. Should we expect further changes? 

Davis: You do have to be careful and look at your state and local requirements because they can be all over the map. Basically, for the past year and a half, that’s all we’ve been doing – trying to stay on top of what’s new, because it’s constantly changing. We’re also awaiting guidance from OSHA and that could turn us in one direction or the other.


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