Your employer wants to know if you have been vaccinated

The CDC’s recent guidance, suggesting that most fully vaccinated individuals should be able to discontinue certain safety measures such as masking and social distancing, has created significant confusion among employers, reflected in conflicting and ever-changing state and local COVID-19 workplace laws, regulations and guidelines. While the latest CDC guidelines advocate resumption of activities (indoor and outdoor) without a mask for most fully vaccinated individuals, guidelines on vaccination review and differential treatment between vaccinated and unvaccinated people are still missing. Employers are now faced with these sensitive but critically important issues of returning to the office without receiving critical guidance from federal, state and local regulators. Below are some guidelines on vaccine verification and some considerations for employers considering introducing vaccine policies.

The current guidance remains incomplete, but updates should follow shortly

Like the CDC guidelines, the December EEOC guidelines do not contain specific guidelines on vaccination requests. While the EEOC allows employers to obtain “proof of receipt” of the vaccination, the EEOC’s only additional guidance is to warn employers not to request medical information during the verification process to avoid triggering an ADA or GINA violation . While the EEOC guidelines do not discuss the eligibility of vaccinated workers, unlike unvaccinated workers, they do remind employers who have a mandatory vaccination policy to provide reasonable accommodation to workers who remain unvaccinated for disability or religious reasons. OSHA’s January guideline does not address vaccine verification, but recommends employers to require vaccinated and unvaccinated workers to follow standard COVID-19 safeguards (such as wearing masks) because of the data on the portability of COVID -19 cannot be fully understood. But both agencies have updated their websites to indicate that they are taking into account the implications of the CDC’s recently updated guidance.

The current flow of regulation results in part from the lack of data on the effects of vaccines on disease transmission, the lack of a national approach to documenting and reviewing COVID-19 vaccine status, and the apparent lack of coordination between competent authorities. In other words, while the CDC supports easing restrictions on most vaccinated people in the workplace and the EEOC allows employers to ask about vaccination status, no federal agency provides guidance on the most pressing questions for employers: companies) checking that someone has been fully vaccinated , and may employers treat vaccinated workers differently from unvaccinated workers?

Employers can take certain steps to verify vaccination

There is no current national standard or register for certifying COVID-19 vaccination status, although some states have started to implement systems such as the New York Excelsior Pass. The COVID-19 vaccination cards that are issued to people at vaccination centers are not verified by government regulations (e.g. driver’s license or passport) and can easily be misplaced, changed or even forged. While papers must be presented to receive the vaccine (ID card and health insurance card for insured persons), there is no national register to verify the vaccination.

Employers considering following CDC guidelines, including in jurisdictions that allow a person to work in the workplace without a mask, something that seems to be changing daily, as reflected in the recent New York announcement Coming – should consider developing their vaccine verification guidelines addressing the following:

  • A workplace vaccination policy should clearly identify the vaccination verification process, including the records that the employee must provide – e.g. not provide – such as medical or genetic information in addition to the actual vaccination.

  • The vaccination policy should also clarify how The employee can receive the vaccination card and ask the employee to keep a copy of the vaccination card. For example, some pharmacies offer individuals digital access to their vaccine records, and other companies offer free lamination services.

  • Employers should also consider whether they will encourage workers to obtain a vaccination record (if one is available), but they should seek advice beforehand as this is a new topic (and the prohibition of such records in some jurisdictions) and the need for it Comply with data protection regulations.

  • Employers should consider what happens if an employee claims that the employee cannot get confirmation. If the employee has not made a copy and cannot obtain a copy, the employer may require the employee to contact the vaccination center or state health department to learn how to obtain a copy and allow the employee the necessary time to do so . Employers could also choose to require their workers to be vaccinated (in the same way that workers recognize employment policy).

  • Employers should consider whether vaccination protocols need to be updated to reflect potential annual or other regular booster vaccinations in the future.

  • Finally, as with any employment policy, it is recommended that employers clearly explain to the worker the possible consequences of a breach and the approach should be no different here.

Employers considering implementing workplace protocols based on vaccination status must consider how to implement a vaccine screening system for other people who enter the employer’s premises, such as people at the workplace. B. Suppliers, customers and those who serve the company. As we currently lack a national system for verifying vaccines, this system may be based on the solicitation of vaccination cards or the solicitation to certify vaccination status in a similar way to employees. Without the ability to implement a robust system, especially when it comes to individuals (z system may be the only system currently available.

Vaccine status as gatekeeping to workplace benefits

Vaccine-certified employees, while mask-free in the workplace, present different challenges, and employers must consider the legal and other ramifications for creating workplace policies that benefit vaccinated individuals but inevitably affect others who benefit from them Policies cannot benefit.

Employers need to consider the impact of restricting workspace areas to only vaccinated employees, such as kitchens, rest areas, and other common areas. Cordoning off work areas for only vaccinated persons or forcing unvaccinated workers to work in designated areas could potentially lead to other problems, as could the provision of badges showing the carrier’s vaccination status to everyone in the workplace. While vaccination status might warrant a change in workplace protocol (again, if state and local regulations permit), vaccinated employees, who are allowed to remove their masks and gather in groups, can receive employment benefits that are not shared by those who cannot be vaccinated. also for medical reasons or who have legitimate religious objections (or even for those who remain reluctant to take an experimental vaccine).

Employers must also take into account the reactions of their employees when implementing policies that treat employees differently. Some unvaccinated workers may feel that unemployment benefits are only granted to those who have been vaccinated, which could lead to resentment and misunderstanding. Such a policy could also appear unfair at first sight and could expose an employer to discrimination or other claims. At the same time, resentments and misunderstandings can arise from vaccinated employees, who are often just as interested in the vaccination status as the employer himself, especially when scientific data on portability take shape. Employers must therefore be careful that their vaccinated workers do not in turn abuse their unvaccinated colleagues, and from a recruitment and retention perspective, there may be concerns that vaccinated workers may look elsewhere if they believe their employer is not addressing concerns unvaccinated employee – whether or not these concerns are legitimate. Likewise, applicants on the recruiting front might urge an employer to provide details of how the employer regulates vaccinations, if any, and these guidelines could potentially form the basis of employment decision-making.

Make vaccination guidelines consistent and flexible

Even before the pandemic, creating consistent and mindful workplace guidelines was a challenge. The latest guidance from the CDC underscores the difficulty of creating consistent workplace policies when science is unpredictable and government regulations change without warning. Other federal agencies like OSHA also have some catching up to do. And employers, of course, have to comply with rapidly changing state and local regulations – for employers with multiple jurisdictions, the regulatory framework for returning to office becomes an arduous task. In these circumstances, employers should be cautious in implementing a “vaccinated only” policy and if they are to adopt such a policy they should carefully consider the most appropriate method for obtaining a certificate of vaccination and designing their workplace to accommodate both vaccinated and vaccinated even unvaccinated workers admitted will be successful. Regardless of whether a vaccination policy is implemented or not, the consequences for workers are significant, both morally and legally. Further regulatory guidance is welcome.

© 1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC All rights reserved.National Law Review, Volume XI, Number 138

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