By Tyler Hibler and Michaeli Hennessy
As vaccine distribution becomes widespread and employees begin to return to work, we continue to field questions related to return-to-office plans. Below are some recent considerations related to Covid-19 safety protocols.
1. When employees begin returning to the office, can we require those who have not received the vaccine to stay home and continue to work remotely?
Generally speaking, yes. Based upon EEOC guidance, an unvaccinated employee may pose a direct threat to others in the workplace. As a result, you can likely require an employee to work remotely if they have not yet received a COVID-19 vaccine — as long as such requirements are consistent with the employer’s obligation to provide reasonable accommodations under state and federal laws, including the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII).
You can legally ask your employees whether they have been vaccinated. However, legal concerns may arise if you inquire into an employee’s decision to not receive the vaccine. Under the ADA, an employer’s questions must be “job-related and consistent with business necessity.” Thus, additional inquiries by the employer are likely not permissible.
Any Covid-19 policy must yield to and comply with federal and state workplace laws, including the ADA and Title VII. The policy must accommodate employees with disabilities and employees with sincerely held religious beliefs. If your workforce is unionized, you may also need to evaluate your current collective bargaining agreement and/or negotiate with the union before requiring a vaccine. Similarly, numerous states have recently introduced legislation to prevent employers from discriminating against workers who choose not to be vaccinated.
2. To promote a healthy and safe workforce, can we establish separate workspaces for vaccinated and unvaccinated employees?
In the ever-changing world of Covid-19 infection rates, you should continue to follow guidance established by the CDC and state/local health departments to determine risks posed to your workforce. The CDC currently states that fully vaccinated individuals can socialize with other fully vaccinated individuals, as well as unvaccinated individuals with low risks for severe Covid-19 reactions without wearing a mask or social distancing.
It is still recommended, though, that even fully vaccinated individuals take precautions while in public settings, including work: wearing a face mask, practicing social distancing, etc. Therefore, you should develop a return-to-work policy that contemplates safety precautions (i.e., when people should wear masks and in which areas) for all employees.
In regard to the physical separation of vaccinated and unvaccinated employees, you should exercise caution when electing to implement such a policy to avoid disparate impacts upon individuals requiring accommodations. Additionally, any such policy will need to be justified by a business necessity.
Ultimately, this is a question of can and should. Can you establish separate workspaces? Possibly, if it does not result in different treatment of those requiring accommodation and is justified by a business need. Should you implement such a policy? Probably not, as it invites possible legal claims and may negatively impact employee morale.
3. If an employee travels, what safeguards need to be taken? Can there be different safeguards for individuals who have been vaccinated?
With summer vacations approaching, this will likely become a more prevalent consideration for many employers moving forward. Based upon current EEOC guidance, you can devise appropriate safety protocols related to travel in light of the direct threat posed by Covid-19. And generally, you can develop varying company policies depending on whether the worker has been vaccinated based upon current CDC guidance.
However, you should strongly consider state and federal workplace laws, as well as the potential unequal impacts of any such policy. In addition, you should also assess the negative effects of implementing different workplace rules for vaccinated and unvaccinated employees — such as harming workplace morale and inviting complaints of unfair treatment.
According to the CDC, fully vaccinated travelers are less likely to contract and spread the virus. Thus, those who are fully vaccinated can safely travel within the United States without self-quarantining and getting tested before or after travel. The CDC also provides travel recommendations for travelers who are not fully vaccinated, recommending that they get tested three to five days after travel and self-quarantine for up to seven days. If a traveler does not get tested, it is recommended that the traveler self-quarantine for at least 10 days after travel.
Additionally, you can also require employees to disclose work-related, as well as personal, travel plans, provided the inquiry is equally applied to all workers and consistent with business necessity. Hence, a reasonable safety protocol might require all employees to report whether they have been vaccinated and their travel plans. You could also require all employees to confirm that they are not experiencing Covid-related symptoms before returning to work after travel.