A recent change in guidelines from the Centers for Disease Control and Prevention has some businesses rethinking their COVID-19 mask policies and questioning whether they can or should ask employees to prove they have been vaccinated.

The CDC updated its guidelines saying people who are fully vaccinated no longer need to wear a mask or social distance in any situation except when required by federal, state, local, tribal or territorial laws and regulations. The new CDC vaccine guidelines also state people who have been exposed to someone with COVID-19 generally no longer need to be tested for the virus unless they are experiencing symptoms.  Exceptions to the CDC vaccine guidelines include those who are residents or employees of a correctional facility or a homeless shelter. Long-term care facilities and retirement homes also are exceptions.

The issue of mask and (more recently) vaccine requirements has been a sticky situation for employers due to legal and moral obligations along with the divisiveness of the matters. The fact that the CDC vaccine guidelines come during a time when many employers are addressing return-to-work strategies for their employees compounds the matter.

“The guidance doesn’t really direct to employers, it directs to individuals,” says Gordon Berger, a partner at the FisherBroyles LLP law firm in Georgia.

All of this can be challenging for employers to sort out. Human resources professionals and employment law attorneys have been inundated with questions in recent weeks from people trying to find the right answers.

Problem is there are no universal right answers. What works or makes sense for one business or industry won’t be applicable for others. Often, business leaders are having to use their best judgment as it pertains to their individual situation. State or local mandates also may come into play, superseding CDC guidelines.

For many, it’s about finding the right balance of local, state, CDC and Occupational Safety and Health Administration (OSHA) guidance to determine what is best for the needs of the business, its employees and customers.

Still, businesses need to be mindful of some of the bigger-picture implications of all of this.

We’ve pulled together information from various resources — aggregated from in-house discussions, media reports, industry trade publications and employment law attorneys — to address some of the most frequently asked questions.

Can my business keep mask/social distancing requirements in place?

The answer is yes. Businesses do have the authority continuing to require their customers to wear masks. Many businesses have decided to continue with mask requirements in the near term. However, employers (including many of the largest retailers in the U.S.)  increasingly are letting mask requirements lapse with the expiration of state or local mandates.

Some employers still require their employees to wear masks despite lifting that requirement of customers.

The decision to continue mask requirements often comes down to employer-employee liability.

“Businesses have so many other things to consider in terms of general liability outside of the employment arena like customers and customer preferences,” says Connor Cross, Human Resources Director for Syndeo. “So even though an employer can stop mandating masks, SHOULD they if they are in food service, or medical professions, or industries that come in close contact with the general public?”

She says businesses in those industries generally are better served keeping mask mandates in place.

Is requiring proof of COVID-19 vaccination a HIPAA violation?

The CDC guidance specifically pertains to individuals who are “fully vaccinated,” which that organization defines as a person who is at least two weeks removed from receiving the second dose of a two-dose vaccine or are two weeks past receiving the single-dose Johnson & Johnson vaccine.

This is where many of the questions about vaccine requirements have come into play.

Is requiring customers to prove they have been vaccinated before being allowed to go maskless in a store or place of business a violation of the Health Insurance Portability and Accountability Act (HIPAA) of 1996?  Employment lawyers say the answer is no, generally speaking, because HIPAA applies to the sharing of information among health care providers and insurance companies.

But a big question with the CDC’s new guidelines is enforcement.

Employers may be reluctant to lift mask requirements amid concerns about people not being truthful about being vaccinated and the potential exposure risk for their employees. Some view this as an opportunity for people who have been against wearing masks to have an out regardless of whether they have actually been vaccinated.

Generally speaking, businesses are being forced to choose between the vaccine “honor system” and trusting people are being truthful about being vaccinated or requiring proof in the form of a vaccine card. It’s a tough call because people are going to be upset regardless of what a business decides is its best course of action.

Can employees be asked to provide proof of vaccination?

Like decisions about masks, the issue of CDC vaccine guidelines presents challenges for employers.

December 2020 guidance from the Equal Employment Opportunity Commission indicates COVID-19 vaccinations can be required in some instances as long as the request complies with the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. Other workplace laws under the EEOC also apply.

Many employers are encouraging their employees to get vaccinated but have stopped short of it being a requirement.

Employment law experts say employers can ask workers to prove they have been vaccinated against COVID-19 as long as it is a basic inquiry. In other words, avoid ADA issues by not asking for too many specifics with regard to reasons why a person has been vaccinated or has elected not to.

Additionally, employers should maintain confidentiality if they choose to require employees to provide proof of vaccination. Access to that information and its use should be limited as well.

This Society for Human Resource Management report provides more detail on how employers should approach the proof-of-vaccine issue.

What is required under OSHA?

OSHA says it is reviewing the new CDC vaccine guidelines but has yet to provide employers with any of its own recommendations pertaining to COVID-19 protocols.

Meanwhile, OSHA rules require employers to keep workplaces free from known hazards. COVID-19 falls under the organization’s “general duty clause” instead of being classified in a stand-alone category.

However, OSHA did launch an initiative in March called The National Emphasis Program (NEP) to expand the general duty clause. The new program (summarized here) is geared toward businesses that have the largest number of workers with increased potential exposure to COVID-19.

The NEP also incorporates provisions that ensures workers are protected from employer retaliation in whistle blower cases.

This FisherBroyles webinar addresses OSHA, vaccine requirements and other topics related to COVID-19.

Guidance pertaining to COVID-19 and CDC vaccine guidelines will continue to evolve throughout 2021. Syndeo will monitor changes and communicate pertinent information accordingly.

 

About us: As the Heartland’s leading employer services company, Syndeo partners with local business owners to help them minimize risk, improve efficiency and maximize profitability allowing them the freedom to focus on growth and fulfilling their mission. Syndeo fulfills its mission by taking on all of the HR responsibilities for our clients’ workforce, including employee relations, benefits, risk management and payroll.

 Winner of the 2020 and 2021 Best of HR Services Award through ClearlyRated for providing superior client service. See our ClearlyRated profile here.

 

~Josh Heck, Marketing Manager, Syndeo