by the HR Team at East Coast Risk Management
With COVID-19 cases continuing around the nation, employers are still focusing on keeping the workplace safe while trying to navigate a fluid situation. The following questions are the most frequently asked by our employers. We hope these answers may help address many of your concerns, as well.
Frequently Asked Questions
- Can we require employees to receive the COVID vaccine?
Generally, yes. Federal law allows employers to require that their employees get the vaccine, but exceptions must be made for employees who are unable to do so because of a disability or a sincerely held religious belief. The Equal Employment Opportunity Commission (“EEOC”) recently published guidance on this topic, which can be found by clicking here. However, some states have considered passing a law to prohibit mandatory vaccination, so this issue will need to be closely monitored and considered both before and after deciding on a mandatory vaccine policy.
Despite the green light from the EEOC, many employers have chosen to encourage vaccination, rather than mandate it, since the topic is polarizing. Employees have very strong feelings about the vaccine, considering it a personal decision, so requiring it could cause employers to lose talent.
- Can we ask employees if they are vaccinated?
Yes. The EEOC guidance explains that employers can ask employees about their vaccination status without violating the Americans with Disabilities Act (“ADA”) since asking this question is not a “disability-related inquiry.”
- Can we ask for a copy of an employee’s COVID-19 vaccine card?
Yes. Employers are permitted to collect copies of vaccine cards even if they are not requiring vaccination. However, employers should limit their questions to asking if employees have been vaccinated and/or asking for a copy of their vaccination card because asking further questions, such as why an employee has not been vaccinated, may violate the ADA as further explained in FAQ #4.
- If an employee has not received the vaccine, can we ask them why?
Maybe. Asking employees why they have not been vaccinated is a “disability-related inquiry” under the ADA because the employee may share information about a disability. For instance, an employee may share failure to get the vaccine is due to an autoimmune disease. EEOC guidance states that this inquiry can only be made if the need to ask the question is “job-related and consistent with business necessity.” To meet this standard, an employer would need to show that the employee’s failure to get the vaccine would pose a “direct threat” to the safety of that employee or others with whom that employee has contact through their job duties. An employer may be able to meet this standard if the employee is in regular contact with other employees and/or customers.
- Can an employer fire an employee who refuses to be vaccinated?
Maybe. First of all, Title VII and the ADA require employers to provide a reasonable accommodation to employees seeking an exemption from a vaccine mandate where the employee is unable to receive it for a religious or disability-related reason. In addition, the EEOC cautions employers that if the employer can establish that an unvaccinated employee poses a direct threat (that cannot be accommodated without an undue hardship), the employer can exclude the employee from the worksite, but the employer cannot terminate the employee without further consideration of the employee’s legal protections or other possible accommodation. An example of an accommodation given by the EEOC for employers to consider is whether the employee can perform their job remotely. The guidance notes that this undue hardship standard may be affected by the number of employees in the workplace who have already received a vaccine and the amount of contact with others whose vaccination status could be unknown.
- Do we need to have a policy to address COVID-19 vaccines?
Yes. Employers should develop a policy which outlines any COVID vaccine requirements in the workplace. This policy will allow employers to communicate their expectations with employees, ensure compliance with applicable laws, ensure consistency, and streamline internal processes to limit liability.
- If our employees travel for business, must they be vaccinated?
It is recommended, but not required. The Centers for Disease Control and Prevention (“CDC”) recommends delaying international travel until an individual is fully vaccinated. Those that are fully vaccinated do not need a COVID test before leaving the United States, but those coming into the U.S. from abroad are still required to have a negative test or documentation of recovery from COVID before they board a flight to the U.S. The CDC recommends international travelers get a test 3-5 days after arriving in the U.S., but they do not need to quarantine following their return.
Fully vaccinated people traveling within the U.S. do not need to quarantine nor take a COVID test before or after domestic travel as long as they follow COVID-19 precautions while traveling. Such precautions include wearing a mask, avoiding crowds, social distancing, and washing hands frequently.
- Does a fully vaccinated employee need to quarantine if they come into close contact with an individual that is COVID positive?
Generally, no. Fully vaccinated people with no COVID symptoms do not need to quarantine or be tested following an exposure to someone with COVID since their risk of infection is low. However, these individuals should still monitor for COVID symptoms for 14 days following an exposure. If symptoms develop, they should isolate from others and be clinically evaluated for COVID.
- Has the CDC issued guidance for fully vaccinated individuals?
Yes, the CDC released interim Public Health Recommendations for fully vaccinated individuals on April 2, 2021. Click here to access the full update.
Please note that this guidance may not apply to your business. Many states still have public health orders in place that are stricter than this interim guidance. In those cases, the public health order must be followed.
- After employees have been fully vaccinated, can they stop practicing other preventive measures, such as social distancing and wearing a mask?
It is unclear at this time. While the CDC has issued the interim guidance referred to in FAQ #9, that guidance may not apply in your workplace. Some states still have public health orders in effect that will require preventive guidelines, such as mask wearing.
If you have questions about COVID-19 and the workplace or have any other questions related to human resources issues, contact East Coast Risk Management by calling 724-864-8745 or email us at firstname.lastname@example.org. We will be happy to help!
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