As we move past the COVID-19 pandemic, employers should understand their rights and responsibilities to keep employees, customers and the workplace as safe as possible. The return to on-site work for some staff members raises concerns. While other staff members have never taken time away or worked remotely, they too worry about workplaces returning to full staffing levels. Employers can use best practices to minimize risk to staff and the public with some guidance from authorities.
To create the safest possible work space, COVID-19 testing and the now-available vaccines are top of mind for most employers. Guidelines are available from the CDC and EEOC on testing for the virus; and guidance is evolving with regard to the vaccine.
COVID-19 Testing: Mandatory or Voluntary?
In the past, health screening of any kind was allowed under the Americans With Disabilities Act only if the screening was “job related and consistent with business necessity.” In April 2020, the EEOC issued guidance allowing employers the ability to require workers test for COVID-19 before returning to the workplace in an effort to reduce the spread of the virus.
For employees on the job, testing should be required if an employee is symptomatic. Staff members who become ill on the job with COVID-like symptoms, including fever, chills, shortness of breath, sore throat, loss of taste or smell, etc., should be immediately removed from the workplace and referred to a medical professional for testing. Employees who develop symptoms at home should seek medical attention immediately.
The CDC offers guidance on when an employee can return to work following a positive COVID-19 test:
Employees who test positive but never develop COVID-19 symptoms:
- Isolate at home for 10 days, limiting contact with others if possible.
- Discontinue isolation and other precautions 10 days after the date of the first positive test.
Employees who test positive and develop COVID-19 symptoms:
- If directed to self care by a physician (no other medical intervention required)
- Isolate at home for 10 days, limiting contact with others if possible.
- Discontinue isolation under the following conditions:
- At least 10 days have passed since symptom onset and
- at least 24 hours have passed since resolution of fever without the use of fever-reducing medications and
- other symptoms have improved.
Employees who test positive and require medical intervention (including hospitalization)
- Refer to healthcare provider’s instructions before returning to work.
Employers may require a release to return to the workplace from physician if an employee has had or tested positive for COVID-19. Healthcare providers may be overwhelmed with patients, however, so some employees may expect delays in acquiring releases to return to work.
COVID-19 Vaccines: Mandatory or Voluntary?
The EEOC issued the following guidance on May 28, 2021:
Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19 so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations.
Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party.
Employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive.
While employers are not prohibited from requiring vaccines, few organizations – not even the CDC itself – have mandated employee vaccinations. Business leaders will need to determine whether mandatory vaccines are in the best interest of company, employees and the public.
Businesses that require vaccines for workers will need to make any necessary accommodations under the ADA, federal and local mandates if an employee is unable or unwilling to be vaccinated. EEOC advises some workers or demographic groups may have limited access to vaccines, making it challenging to comply. For others the need to disclose pre-vaccination disability-related protected medical information may cause vaccine hesitancy.
Reporting hiccup
In April 2021, The Occupational Safety and Health Administration (OSHA) issued guidance to employers regarding mandatory vaccines. The Agency stated employers would need to create adverse reaction reports for any workers who suffered side effects of mandatory COVID-19 vaccinations. In an effort to promote vaccine usage, in May, 2021, OSHA suspended recording of side effects of mandatory vaccines until May of 2022.
COVID-19 has put unprecedented challenges before business and employees. Moving past the pandemic will require organizations to closely monitor testing and vaccine policies and responsibilities. Keeping current will help business align with the law and promote best practices to maintain a healthy workplace and workforce.