Julie A. Cardosi
CURRENT & CONTINUED CHALLENGES FOR BUSINESS EMPLOYERS IN THE WORKPLACE DURING THE ONGOING PANDEMIC
With the current spread of Covid-19 variants, many businesses, including dealerships, are facing challenges associated with requiring proof of employees’ vaccination status, wearing masks and submitting to regular Covid-19 testing. Dealerships should consult with their own private attorneys about the careful development of vaccination policies to address these issues.
Earlier this year, the United States Centers for Disease Control and Prevention (CDC) and several state and local public health authorities had lessened some of the restrictions relative to fully vaccinated individuals. However, with the more recent onset of the very transmissible Delta variant, resulting in an increase of Covid-19 cases throughout the country, the CDC and other public health agencies continue to announce additional changes which, as of the writing of this article, include without limitation, recommending that fully vaccinated individuals wear masks in certain indoor venues. Other recent measures have included the federal government (along with certain state and local authorities) requiring certain public employees and those who work in high-risk environments (e.g., health care) to show proof of vaccination or submit to regular Covid-19 testing, wear masks and physically distance from fellow employees and customers or visitors.
Some businesses and companies have announced vaccination and testing policies that are operative with respect to their employees. In doing so, these businesses are traversing the balance between employee and workplace safety and privacy considerations. Indeed, while some states are issuing vaccine and testing mandates, others are attempting to prevent businesses and government agencies from requiring individuals to show proof of vaccination status. The following general principles can assist businesses as they work with their legal advisers to address some of the issues in the development of their own policies.
First, while an employer may have a legitimate business need to inquire about an employee’s vaccination status, proposed questions about vaccination status should, at a minimum, be reviewed with the business’s attorney. Employers must exercise caution to avoid making medical inquiries in contravention of the Americans with Disabilities Act (ADA) and other similar laws. The federal Equal Employment Opportunity Commission (EEOC) has commented that if employers ask employees to provide vaccination proof, they should consider warning the employee not to provide any medical information as part of the proof to avoid implicating the ADA. If a business were to require its employees to be vaccinated, it must also consider reasonable accommodations for employees with disabilities or medical conditions or a religious exemption.
Second, information an employee provides about vaccination status must be held strictly confidential. Further, such information must not be used to make employment decisions.
Third, since the beginning of the pandemic, the federal, state and local regulatory and legal landscape has been constantly changing, with new and modified Covid-19 orders and guidance issued regularly. For this additional reason, it is imperative that a business’s vaccination status policy be developed with the assistance of legal counsel. The ever-evolving requirements can impact an employer’s policy. Therefore, employers must continue to be flexible with respect to their policies and stay vigilant and current about any federal, state and local rules and developments that might be impactful. This is also helpful in communicating with and educating employees and customers about the policies.
To paraphrase the words of Winston Churchill, neither success nor failure is final, “it is the courage to continue that counts.” The pandemic has caused each of us to reach deep within ourselves and persevere through the adversity and challenges of the present time.
See U.S. Centers for Disease Control and Prevention, “Workplace Covid-19 Vaccine Toolkit” (07-29-21 update) (“If an employer requires employees to provide proof that they have received a Covid-19 vaccination from a pharmacy or their own healthcare provider, the employer cannot mandate that the employee provide any medical information as part of the proof.”) https://www.cdc.gov/coronavirus/2019-ncov/vaccines/toolkits/essential-workers.html  See https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws  As further indication of the evolving regulatory landscape concerning the subject of this article, after it was written, the U.S. President issued Executive Order 14042 and announced a COVID-19 Action Plan, directing the U.S. Department of Labor, Occupational Safety and Health Administration (OSHA) to draft rules (Emergency Technical Standard (ETS)) requiring companies with 100 or more employees to either (1) ensure that their workforce is "fully vaccinated" or (2) require any workers who remain unvaccinated to produce a negative test for COVID-19 at least once a week. At the time of publication, OSHA’s ETS was still pending, making it all the more essential that covered businesses seek the advice of their legal advisers.