Mask and Vaccination Guidance for Employers
june 3, 2021
Brian M. Smith
Employment & Labor Practice Group Chair
Employment & Labor Practice Group Newsletter Editor
The Centers for Disease Control recently issued guidance permitting fully vaccinated individuals to go mask-free. This guidance has raised many questions for employers, including what authority controls, the types of policies that can be implemented in the workplace, and privacy concerns relating to vaccination verification.
In mid-May, the CDC unexpectedly announced that individuals who are fully vaccinated against COVID-19 may forgo masks in most circumstances. While this announcement contained relatively positive news, the CDC’s guidance is not legally binding. Rather, the ultimate authority for employers is reserved for the Occupational Safety and Health Administration. OSHA has instructed employers to follow the CDC’s recent mask guidance for employees who are fully vaccinated, but noted that the relaxed guidance is not applicable to the health care industry. It also instructed employers to adhere to state or local laws, rules, and regulations, unless or until state and local orders are revised or rescinded.
The Equal Employment Opportunity Commission also recently issued guidance for employers that wish to inquire about an employee’s vaccination status. The EEOC importantly noted that that such inquiries are not prohibited under the Americans with Disabilities Act. An employer may request proof of vaccination by asking the employee to provide a copy of the CDC-issued vaccine card or a printout from a health care provider that administered the vaccine. Merely requesting proof of vaccine verification is not likely to prompt information regarding a disability, but inquiries as to why an employee did not receive the vaccination may elicit information concerning a disability and could render employers exposed to liability.
More recent EEOC guidance also indicates that employers can require employees to be vaccinated without violating agency laws and regulations. However, the EEOC noted that employers that require employees to be vaccinated must also make reasonable accommodations for employees who choose not to get vaccinated due to a disability, religious belief, or pregnancy. The EEOC also stated that employers may offer incentives to encourage employees to be vaccinated, so long as the incentives are not coercive. The EEOC reasons that a coercive incentive could pressure employees to disclose protected medical information because vaccinations require employees to answer disability-related questions.
It is inevitable that an individual’s vaccination status may be revealed by whether the employee continues to wear a mask. However, the risk that employers face in this scenario isn’t so much related to privacy as it is to how vaccinated employees are treated in comparison to non-vaccinated employees. Employers should ensure that masked individuals are not excluded from employment opportunities to avoid triggering a disability, religious, or disparate impact claim. Regardless of the vaccination policies implemented, employers must ensure that such policies are consistently applied to all employees to avoid a potential discrimination claim.
For employers that are requiring their employees to be vaccinated, it is recommended that they develop a written policy to request vaccine verification and a process for keeping relevant information confidential. Employers should clearly identify which records an employee must provide and specifically note which information an employee should not provide (such as any medical information). Employers should maintain all information pertaining to an employee’s vaccination as confidential and any related medical records should be kept in locations accessible to authorized personnel only.
Employers should be mindful in balancing workplace safety procedures with employee privacy concerns when implementing policies consistent with the CDC’s guidance. If you have any questions relating to the recent guidance, mask or vaccination policy implementation, or privacy violations, please contact Heyl Royster’s Employment & Labor Practice Group.
Special thanks to Katelyn Schwiderski, a summer associate in the Peoria office, for her assistance with this article.