With the rise of the Delta variant of COVID-19, the CDC has issued updated information and is recommending the wearing of masks in public, regardless of vaccination status, in areas of substantial or high transmission. This is especially emphasized when a person is immunocompromised, or at risk for severe disease from COVID-19, or if they have someone in their household who is immunocompromised, at increased risk of severe disease or not fully vaccinated.

The CDC has also added a recommendation for fully vaccinated individuals who have a known exposure to someone with suspected or confirmed COVID-19 to be tested 3-5 days after exposure, and to wear a mask in public indoor settings for 14 days or until they receive a negative test result.

Further, the CDC recommends universal indoor masking for all teachers, staff, students, and visitors to schools, regardless of vaccination status.

Companies should refer to the CDC guidelines in conjunction with the guidelines published by their own City, County, or State Public Health guidelines or mandates. Guardian HR’s Forms Library is available for active client users, and the CORONAVIRUS folder will have direction on State-Specific Information regarding this topic. Further, you can visit the CDC’s list of health departments here.

In December of 2020, Guardian HR first published an article titled “Can Employers Require Covid-19 Vaccinations”, which can be viewed here: https://guardian-hr.com/can-employers-require-covid-19-vaccinations.
In May of 2021, the EEOC published an update to the guidance which is summarized below:

Vaccine Mandates: The EEOC now expressly states that, subject to reasonable accommodation considerations under Title VII and the Americans with Disabilities act, federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19. Per the EEOC, “these principles apply if an employee gets the vaccine in the community or from the employer.” However, EEOC notes it is possible that a mandatory vaccine requirement could have disparate impact on a protected class because “some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others.”

Reasonable Accommodations: The EEOC’s Guidance provides more detail on how to determine if an employee poses an “undue hardship” or “direct threat,” such that an employer cannot accommodate a disability (or, similar, an individual’s sincerely held religious  belief). Relevant considerations can include the proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and “the extend of employee’s contact with non-employees, whose vaccination status could be unknown or who may be ineligible for the vaccine.”

Per the EEOC, employers still must potentially accommodate fully vaccinated individuals if they request accommodation for an underlying disability because of “a continuing concern that he or she faces a heightened risk of severe illness from a COVID-19 infection, despite being vaccinated.” For example, some individuals who are immunocompromised might still need reasonable accommodations because their conditions may mean the vaccines may not offer the same measure of protection afforded other vaccinated individuals.

Confidentiality: The EEOC expressly states that information about an employee’s vaccination status is considered “confidential medical information” under the ADA. Like all medical information, it must be kept confidential and stored separately from the employee’s personnel file. The EEOC has not offered guidance for employers on how to easily identify the vaccination status of an employee in the workplace in order to enforce the ongoing mask mandates.

Employer Inquiries: Employers may ask employees about whether or not they have obtained the vaccine from a third party in the community (pharmacy, doctor, etc.), and this question is not a “disability-related inquiry.” Further, employers may ask employees to provide documentation or other confirmation of the vaccine from such sources without the request also being a “disability-related inquiry.”

Vaccine Incentives: Employers may offer incentives to employees to voluntarily provide documentation or other confirmation that they received a vaccine from a third-party vaccine provider. Further, employers may offer incentives to employees who voluntarily receive a vaccination administered by the employer or its agent, so long as the incentive (which includes both rewards and penalties) is not so substantial as to be coercive. because vaccinations require employees to answer pre vaccination disability related screening questions, the EEOC asserts that a large incentive could make employees feel pressured to disclose protected medical information.

Updated OSHA Vaccination Guidance: in addition to the new EEOC guidance about vaccinations, the federal Occupational Safety and Health Administration (OSHA) likewise updated its message about vaccines. Previously OSHA stated that an employer must record an adverse reaction to a COVID-19 vaccine on its OSHA 300 logs if the employer required employees to be vaccinated and the adverse reaction meets other criteria period now OSHA has announced that because it does not want to appear to discourage vaccines OSHA will not enforce the recording of requirements through May 2022.

You may find mandatory/vaccination policies, self-attestation forms, guidelines on what to do if an employee refuses to get vaccinated and more in the Guardian HR’s Forms Library under “Coronavirus > Vaccine” located in the Client Portal for continuously updated materials on this and other topics.

Clients wishing for additional information on CDC’s mask recommendation, please contact your Guardian HR dedicated Manager.

If you wish to become a client of Guardian HR and get access to all our resources including your own dedicated consultant and our team of employment attorneys, please contact us at sales@guardian-hr.com or call us at 888-373-4724.