Employer Options for COVID-19 Vaccinations and Masking for Employees
May 25, 2021 • Brian K. Keeley
Employers have been in a difficult spot when it comes to employees and vaccinations for COVID-19. While many employers have expressed a desire to require masking, legal risks, uncertainty, and administrative requirements have kept many from imposing a requirement that employees be vaccinated to return to work, continue employment, or be newly hired.
Employers have been in a difficult spot when it comes to employees and vaccinations for COVID-19. While many employers have expressed a desire to require masking, legal risks, uncertainty, and administrative requirements have kept many from imposing a requirement that employees be vaccinated to return to work, continue employment, or be newly hired. Recent changes by the CDC, L&I, and Public Health of Seattle and King County may provide employers with an alternative option: condition mask wearing on vaccination status. This post addresses options for employers to consider as King County, the State of Washington, and the country continue to make progress in vaccinations and look toward further lifting of COVID-19-related restrictions.
Recent Guidance from the CDC, L&I, and Public Health of Seattle and King County
On May 13, 2021, the CDC (Centers for Disease Control and Prevention) announced a change in its recommendations for masks or facial coverings as COVID-19 tools. Generally, the CDC stated that people who are fully vaccinated no longer were recommended to wear masks in most settings.
In response to the CDC’s updated guidance, Governor Inslee directed L&I (Department of Labor & Industries) to issue new guidance consistent with the CDC’s latest recommendation. On May 21, 2021, L&I issued that guidance. Generally, L&I stated that employers may allow fully vaccinated people to not wear masks in the workplace if the employer verifies the employees are fully vaccinated.
In response to the CDC’s updated guidance and in anticipation of changes to L&I’s guidance, on May 20, 2021 the Director of Public Health for Seattle and King County (King County Health) issued a directive on indoor masking. Generally, all persons in indoor spaces open to the public must continue to wear masks, regardless of their vaccination status. The directive does not apply to non-public indoor spaces such as private offices or to outdoor spaces.
Separately, Governor Inslee announced on May 13, 2021 his goal that all COVID-19-related restrictions would be lifted state-wide by June 30, 2021, depending on changes in conditions until then.
In light of these changes, employers have options both over the next month or so and after the lifting of all restrictions regarding masking and vaccination issues for their employees.
Option: Continuing to Require Universal Masking
Employers have the option of continuing to require all employees to wear masks in the workplace. For some employers, this option may make sense. Although vaccination rates in Washington state are above-average for the nation, with some counties higher than others, just over 40 percent of the total Washington population was fully vaccinated as of May 22, 2021. Some business environments involve workers working in close proximity with many other workers for long durations of time. Some business environments have greater interaction with members of the public (whose vaccination status might be unknown). Some employers might not want to be responsible for tracking the vaccination status of their workers and maintaining the confidentiality of vaccination records. These, along with other considerations, might lead an employer to continue to require masks of all employees for the foreseeable future. This remains a viable option currently (with the entire state still in Governor Inslee’s Phase 3 of restrictions) and may remain a viable option after COVID-19-related restrictions are lifted.
Option: Requiring Employees to be Vaccinated Before Returning to Work
Based on national surveys of employers, a majority of employers have expressed a desire to require employees to become vaccinated before they return to work in a capacity in which they interact with others. But few employers have taken the step of requiring employees to be vaccinated before they return to work. The EEOC (Equal Employment Opportunity Commission) announced its position that an employer is not prohibited under the ADA (Americans with Disabilities Act) or similar federal laws from requiring COVID-19 vaccinations of employees as a condition of employment, though it cautioned that there might be risks to employers of doing so. Washington (through Governor Inslee’s state coronavirus site) has likewise stated that employers may require vaccination as a condition of employment, but only if doing so is not otherwise prohibited by state or federal law. Employers who consider requiring employees to be fully vaccinated before returning to work in a capacity in which they interact with others should remember that neither the EEOC nor the governor have the last word on this issue. The issue of employers requiring employees be vaccinated is not new, and there are many traps for the unwary, areas of uncertainty, and potential for risk for employers who want to impose such a requirement. Those employers who want to explore a vaccination requirement should consider many factors, including these:
-What is the business necessity or justification underlying the vaccination requirement?
-Which employees will be subject to the requirement?
-How will the employer handle requests for accommodations to the requirement that are based on an employee’s religious beliefs?
-How will the employer handle requests for accommodations to the requirement that are based on an employee’s other medical conditions?
-What are the possible workers’ compensation impacts if an employee suffers a severe adverse reaction to a vaccination?
-How will the employer maintain records of vaccination status?
These are just some of the questions an employer should consider before adopting and enforcing a policy requiring employees be fully vaccinated as a condition of further employment. These and other considerations are primarily what has kept employers who might want to require employees be vaccinated from adopting and carrying out such a policy. Employers who want to explore such a policy should consult with employment counsel in crafting a policy.
Option: Requiring Masks Except for Vaccinated Employees
With the CDC, L&I, and King County Health changes, employers now have another option. Employers may require that employees wear masks and maintain safe distancing in the workplace unless they are fully vaccinated. Employers who choose this path should begin with L&I’s guidance on this issue.
Employers should consider when to adopt a policy that permits fully vaccinated employees to not wear masks at the workplace, and should consider how much advance notice to provide employees. Some employers might decide to adopt such a policy soon, bearing in mind the King County Health directive on facial coverings in public spaces. Some employers might wait until restrictions are lifted further before allowing fully vaccinated employees to go without masks.
Employers should decide how they will determine whether employees are vaccinated. Under L&I’s guidance, employers may either ask an employee to provide physical proof of vaccination status or sign an attestation as to their full vaccination status. If the employee provides physical proof (such as showing their vaccination card or vaccination record to the employer), the employer is not required to keep a copy of the employee’s vaccination record. If the employee provides a signed attestation, the employer is required to keep the document. Regardless of the method, employers should maintain a log of which employees are fully vaccinated.
Because vaccination status is an employee’s confidential medical information, employers should designate certain people within the organization to collect and maintain this information. Those people should be trained on how to read and interpret a vaccination record and on what information to record and how to record it. The information gathered should be treated in the same way as other employee confidential medical information.
Employers should consider training and counseling supervisors to not ask about or discuss vaccination status with employees. Employers should also consider asking or instructing employees to not ask about or discuss vaccination status with other employees.
Employers considering this option should consult with employment counsel on how this option might raise other concerns in a particular workplace or environment.
Other Considerations and Cautions
Regardless of how employers handle employee vaccination options, employers should remember that for all options, until Governor Inslee lifts all COVID-19-related restrictions, all workplaces remain subject to the Phase 3 restrictions for all businesses as well as any industry-specific restrictions imposed by the state or a city or county government or health authority. L&I’s guidance provides a reminder of those things that employers must continue to maintain until restrictions are lifted further:
-Encourage frequent hand washing and provide supplies for doing so.
-Frequently clean and sanitize high-contact surfaces.
-If an employee reports probable or confirmed COVID-19 illness, ensure the employee isolates or quarantines consistent with CDC, state, and local requirements, as well as clean and sanitize areas where they worked.
-Screen employees for signs and symptoms of COVID-19 at the start of each shift or workday.
-Continue to maintain and follow a site-specific COVID-19 safety plan.
-Post signs informing employees and visitors of masking and other requirements for employees and visitors to a workplace.
Employers and employees alike eagerly anticipate an end to COVID-19 restrictions and a return to a safe and healthy work environment. As restrictions continue to lift, that seems closer.
Links to helpful information:
The following are links to helpful information on this. Please bear in mind that these links and the information in this post are up to date as of May 24, 2021. In these fast-moving times, things might have changed by the time you read this.
CDC May 13, 2021 Recommendations for Fully Vaccinated People:
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html
L&I May 20, 2021 Facial Coverings Guidance for Business (F414-179-000):
L&I May 21, 2021 COVID-19 Workplace Safety and Health Requirements (Governor’s Proclamation Overview) (F414-169-000):
https://lni.wa.gov/forms-publications/f414-169-000.pdf
Public Health of Seattle and King County May 20, 2021 Indoor Masking Directive:
Brian Keeley represents businesses in employment and litigation matters. He helps businesses avoid employment issues by providing preventive maintenance for conducting business, including having appropriate employment policies, training employees and supervisors, and proactively identifying and addressing potential employment problems. When things go wrong, he represents employers before federal, state, and local employment agencies, in federal and state courts, and in private arbitration. He also advises and defends employers on employee benefit issues. And over the past year, he has advised and assisted employers with questions about COVID-19 and its impact on the workplace.
Meet Brian
Mr. Keeley represents businesses in employment and litigation matters. He helps businesses avoid employment issues by providing preventive maintenance for conducting business, including having appropriate employment policies, training employees and supervisors, and proactively identifying and addressing potential employment problems. When things go wrong, he represents employers before federal, state, and local employment agencies, in federal and...