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Returning to Work and Employer Vaccine Mandates in the Wake of Covid-19

April 20, 2022

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 are looking to transition their employees back into the office. But for most employers, that return to work after Covid-19 is turning out to be an even slower and more complicated process. And it won’t get any easier as lawmakers, regulators, employers, and workers go to battle over vaccine requirements.

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, and a safe and healthy environment for them once they get there.

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

Guide to Employer Vaccine Policy Considerations

Read our guide for employers on the many factors to consider before implementing a vaccine policy or mandate.

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

Covid worker

Vaccine Mandates: Red Light, Green Light & Where to Go From Here

This on-demand webinar is designed to answer all your questions about the ins and outs of creating and implementing a successful vaccine policy in your organization.

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.

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Labor and Employment Legal Resources

Expert analysis, primary sources, practice tools, step-by-step Practical Guidance, and more help L&E practitioners work smarter and faster.

Are 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.

Covid worker

Covid-19 and the Americans with Disabilities Act

Learn more about how the ADA applies to Covid-19 issues as your business opens and employees return to your workplace.

Essential analysis, comprehensive coverage, and practice tools

Access to this information requires a subscription to Bloomberg Law. Don’t have access? Request a demo.

Sample Policy – Employer Vaccine Mandate

A ready-to-use sample policy for an employer requiring that employees be vaccinated against Covid-19.

Labor and Employment State Law Chart Builders

Quickly generate state-by-state comparisons of statutes and regulations in an easy-to-read format.

Fast Answers on Covid-19 Vaccinations & EEO Laws

Get answers to all your questions about the laws governing Covid-19 vaccination policies.

Labor and Employment Resources

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Vaccine Policy Guide for Employers

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