Returning to Work and Vaccine Mandates

July 11, 2023
Returning to Work and Vaccine Mandates

[Ensure a smooth transition back to the office for your workforce.]
The onset of the Covid-19 pandemic forced businesses to make an abrupt transition to remote work. Now that vaccines are widely available, those same businesses have transitioned their employees back into the office. But for most employers, returning to work after Covid-19 has been a complicated process, with regulators, employers, and workers going to battle over vaccine requirements.

This article details implementation of vaccine policies, compliance within organizational frameworks, accommodations under federal law, and resources to help you navigate legal implications of returning to work in an ongoing Covid-19 world.

Should employers mandate the Covid-19 vaccine for employees returning to work?

Before implementing a Covid-19 workplace policy, employers should review the latest guidance from the Centers for Disease Control and Prevention, the Occupational Safety and Health Administration and developments from their state and local government.

Consider mandating or encouraging vaccines, depending on the needs of your workforce. If collecting information about employees’ vaccine status, consider how records will be maintained. Documentation or other confirmation of vaccination provided by employees is considered medical information that must be kept confidential and separately from employee personnel files in compliance with the Americans with Disabilities Act. Prepare for employee inquiries about their coworker’s vaccination status and train managers to respond to such inquiries.

If mandating the Covid-19 vaccine for employees:

  • Implement and distribute procedures to allow employees to request reasonable accommodations
  • Plan and prepare for workers’ safety concerns and political objections
  • Consider how to monitor compliance and address noncompliance

If not mandating vaccines, what steps will help ensure employee safety when returning to work? Some actions to consider:

  • Explore options to incentivize vaccines
  • Remain flexible and responsive to changing circumstances, like a new variant or a local spike in infection rates
  • Leverage data to keep employees safe. Even without a mandate, knowing employee vaccination status can help you act quickly after exposure events

How will your business implement its vaccine policy? What do fast-moving federal and state legislative actions mean for an employer vaccine policy?

As more employees return to the office, businesses and the law firms advising them will be forced to face tough questions around vaccine policies and implementation.

Do employers have to treat vaccinated and unvaccinated workers the same? Can employers keep unvaccinated workers out of common spaces or separate their workstations? Do employers have a duty to protect workers from harassment based on their vaccination status? Should employers revise their vaccine policies to account for booster shots?

As legal professionals advise on these contentious areas of labor and employment, they must also be keenly aware of the fast-paced federal and state legislative actions influencing the guidance they provide. This webinar is designed to help in-house and external counsel answer questions about creating and implementing a worker vaccine program that remains in compliance while avoiding potentially unsafe conditions and costly penalties.

In this webinar, you will:

  • Understand the legal, business, and workplace implications of employer vaccine mandate policies across key employer types and industries
  • Address issues around vaccinated vs. unvaccinated workers, including potential physical separation, questions around harassment and ADA protections, and more
  • Learn how to avoid common pitfalls of vaccine mandate programs
  • Understand best practices for receiving and responding to worker objections and accommodation requests

Should employers implement a health screening policy for employees returning to work after Covid-19?

The Equal Employment Opportunity Commission has acknowledged that the Covid-19 pandemic presents a direct threat to employees and generally allows employers to conduct Covid-19 testing, temperature checks, and health screenings without violating the Americans with Disabilities Act.

Employers that choose to implement Covid-19 screenings should be aware that the EEOC’s guidance does not set aside other employment laws. Employers must ensure that they remain in compliance with Title VII of the Civil Rights Act, the Fair Labor Standards Act, the Occupational Safety and Health Act, and all applicable federal, state, and local laws.

Employers providing on-site Covid-19 viral testing must also consider consequences if employees refuse to undergo testing, and address confidentiality, wage and hour, and safety issues associated with Covid-19 screening.

Is there reasonable accommodations for unvaccinated employees returning to work?

Under the ADA, reasonable accommodations for unvaccinated employees for Covid-19 because of disability may include: wearing face masks; working at a social distance from coworkers or non-employees; or working modified shifts.

Even if no reasonable accommodation exists that permits an unvaccinated employee to be physically present without posing a direct threat, employers must consider telework as an accommodation and, lastly, if reassignment to another position is possible.

It is best practice to have an accommodation request process and review procedures in place before welcoming employees back into the office. While the policy should be applied consistently, it should be flexible enough to evaluate employee needs on a case-by-case basis. Give employees the opportunity to engage in the process and provide the information you need to evaluate their accommodation request.

How can Bloomberg Law help?

Bloomberg Law can help you navigate legal implications and better understand what you need to do to ensure a safe return to work for your employees. Our platform offers essential analysis, comprehensive coverage, and practice tools on all things labor and employment, including fast answers on EEO laws, ready-to-use sample policies on employer vaccine mandates, and state-by-state comparisons on employment state regulations. Learn more.

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