Last year, the Equal Employment Opportunity Commission (EEOC) issued the first guidance for employers regarding the COVID-19 vaccine. Recently, the Occupational Safety and Health Administration (OSHA) released additional guidance, especially for employers grappling with difficult issues: should they require employees to be vaccinated? How should they handle recent CDC guidance on masks? Three great articles provide information.
In December, law firm McDermott Will & Emery (MWE) covered the vaccine mandate and reminded employers of federal laws that provide for certain legally protected exceptions for disability and sincerely held religious beliefs. State laws may add additional requirements or protections, which need to be fully explored with your employment attorney.
MWE’s coverage of the OSHA update makes it clear that adverse reactions to vaccines are considered work-related by OSHA for those employers who mandate vaccination. This means that employers must notify OSHA within 24 hours of an employee’s inpatient admission for a reaction or within eight hours of the employee’s death from same. In addition, employers must report the adverse reaction on the OSHA 300 recordkeeping log if the reaction meets the recording criteria, which include days away from work, restricted work or transfer to another job or medical treatment beyond first aid.
The revised mask guidelines, as reported by HR Executive, are a little thornier; here too, keep in mind that laws vary from state to state. For employers who have mostly remote workers, the mask changes have minimal impact. But for those in industries that require in-person work, and especially those whose employees are in close proximity – such as manufacturers, retailers and restaurants – the answer is not so clear. Another factor which would impact the employer’s action is whether it has a vaccination requirement.
Some employers feel comfortable requiring employees to disclose if they’ve been vaxxed, while others don’t want to deal with the hassle of documenting, storing and protecting this information. As reported in one study, about 41% of employers will ask employees to voluntarily disclose if they’ve been vaccinated, while 32% will not and 27% are unsure.
One thing is abundantly clear: employers need to become (and remain) well-informed of the nuances of any course of action regarding COVID-19, vaccinations and safety protocols. As new information becomes available, make sure you have a solid source to guide your workplace decisions. MWE’s attorneys regularly report updates and provide their legal perspectives, and other well-respected employment law firms probably do the same.