Back To Work: Navigating The Changing COVID-19 Guidelines As Employees Return To The Workplace

If you’ve been wondering about the legalities of mask and vaccine requirements in the workplace, we’ve compiled an FAQ for employers and employees to keep you informed about what is (and isn’t) legal.

As New York returns to the way we knew it, many workers are starting to make the shift from working from home to returning to the office.  Indeed in a press conference a number of weeks ago, New York’s previous governor Andrew Cuomo pled with private companies to re-open their offices, even going as far as suggesting employers target Labor Day as a return-to-office timeframe.  Opening offices, he noted, would help stimulate the economic recovery.

However, with an increase in infection rates toward the end of the summer months, more and more employers are announcing plans to mandate COVID-19 vaccinations for employees who report to in-person offices. On July 29, President Biden announced that federal employees must be vaccinated or meet other conditions, including mask mandates and frequent testing.  Additionally, New York will require state employees to get COVID-19 vaccinated by Labor Day or undergo weekly tests. Several private employers are also requiring their returning employees be vaccinated, including McDonalds, Facebook, and Netflix.  CNN recently publicly fired three employees who refused to comply with their vaccine requirements.

Which begs the question: can employers require their employees get vaccinated? The short answer is yes, with exceptions.  With guidelines and policies varying between jurisdiction and circumstance, it is important for employers and employees alike to stay well informed and up to date with the most recent recommendations in order to make well informed choices to protect themselves from liability and know their rights. Outlined below are key, up-to-date points for both employers and employees to know as they work to navigate the changing guidelines as employees return to the office:

For Employers

Any and all mandates should have appropriate exceptions:

Recent guidance from the Department of Labor Occupational Safety and Health Administration (“OSHA”) and the Equal Employment Opportunity Commission (“EEOC”) has made it clear that vaccine mandates are allowed and even encouraged to ensure a safe and healthy workplace.  Under federal law, a mandatory workplace vaccination must meet the standards outlined under the Americans with Disabilities Act (“ADA”) of being job related and consistent with business necessity. Determination of such will vary between workplaces and particular circumstances. Furthermore, District Courts in Indiana and Texas have upheld vaccine mandates as constitutional when they include appropriate medical or religious exceptions; imposing a strong signal that employers, both public and private, can legally impose such restrictions so long as they consider the appropriate exceptions and apply them where necessary.

Employers may ask their employees whether they received a COVID-19 vaccine:

The EEOC has expressly stated that an employer’s inquiry, by itself, into an employee’s vaccination status does not qualify as prohibited medical inquiry under the ADA; however, caution should be taken to avoid also soliciting information related to an employee’s medical condition. Employers are recommended to limiting their vaccine related questions to simple “yes” or “no” questions.

Employers may require proof of vaccination by way of the CDC-issued vaccine card:

Vaccine cards do not contain any medical diagnosis, medical history, or other personal identifying information that employers do not already have for all their employees. Therefore, employers may ask to see their employees’ vaccine cards as way to prove vaccine status. However, employers should again warn the employee not to provide any other medical information as part of the proof to protect themselves from ADA liability.

Monitor State and local guidance and orders:

Employers are recommended to consider several factors before implementing face-covering or vaccine requirements in the workplace.  Factors can include office size, communal space, number of employees, vaccine status of their employees, and local orders.  It is also important for employers to consider, to a point, the thoughts and opinions of their employees.  Employers should continue to maintain their obligations to maintain a safe and healthy working environment.

Use caution before termination:

Even if an employee refuses to company with company vaccine (or mask) policy, employers should use caution before resorting straight to termination.  Be sure to engage in an interactive dialogue with employees and provide reasonable accommodations where appropriate.  As always, employers should also determine whether employees are protected by any other rights under EEO laws or other New York, federal, and local authorities prior to implementing disciplinary measures or terminating that employee.

For Employees

Private employers have the right to require vaccination to return to the workplace:

It is important for employees to know that their employers have the right to require COVID-19 vaccinations in the workplace.  If an employee has a legitimate health concern or religious belief that prevents them from receiving the vaccine, that employee should explicitly communicate these concerns to their employers and work with their employers on finding a reasonable accommodation to perform their work duties, which could include telecommuting or continued work from home situations if appropriate.

No, it is not a HIPAA violation for employers to ask for proof of vaccine status:

Varying discussions online and in the news has led to confusion over whether employers (or anyone) asking their employees if they have received a COVID-19 vaccine constitutes as a Health Insurance Portability and Accountability Act (“HIPAA”) violation, and the short answer is, no.  Although vaccine status is covered by the HIPAA rules, HIPAA only applies to HIPAA-covered entities, which includes healthcare providers, health plans, and healthcare clearinghouses, and their business associates.  Employers asking employees to provide proof of a vaccine (to, for example, allow that employee to work without a mask or physical distancing), or even asking the employee’s healthcare provider to disclose that information, is not a HIPAA violation since HIPAA does not cover most private employers.  It would, however, be a violation for an employee’s healthcare provider to share vaccine information without consent.

Be aware of ADA and Title VII protections:

There are several reasons why an employee may decide not to get a vaccine; some of which are protected by law.  If an employee indicates that a medical condition or sincerely held religious belief prevents them from receiving the vaccination, their employer must provide a reasonable accommodation for that employee pursuant to the ADA (prohibits discrimination based on disability) and Title VII (prohibits discrimination based on religion, among other protected classes).  It is important that the employee communicate why they should be exempt from the mandate and work with their employer on finding an accommodation.

Know your rights!

If you think you are being unfairly treated differently because of a medical condition or religious belief, contact this office and we can help!

This office is continuing to monitor vaccine guidelines as it relates to employment, and will continue to provide up-to-date relevant information for both employers and their employees. We also recommend that you continue to keep an eye on the EEOC, CDC and websites to stay independently informed.

If you have any questions about your rights and responsibilities as an employee or employer, we’d love to help. Fill out this form, and you will hear back from us.

About Danny Grace PLLC

Founded in 2012, Danny Grace PLLC is a boutique employment litigation and immigration practice located in Manhattan, New York. Trust the attorneys at Danny Grace PLLC for a successful outcome on all of your legal needs.

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This newsletter is intended as general, useful information. Should you require legal advice from our team, please click here.