Employers Continue to Face Tricky COVID Issues as Delta Variant Spreads
Many employers thought they were done grappling with COVID issues as the Summer of 2021 progressed, but that is now clearly not the case. As the COVID Delta variant surges in parts of the country, employers are once again dealing with questions about opening offices, in-person meetings, working from home and wearing masks. The latter issue, regarding masks, was directly addressed by the federal Centers for Disease Control (“CDC”) in late July 2021 when it amended its prior guidance in its “Interim Public Health Recommendations for Fully Vaccinated People” to recommend that even vaccinated individuals in counties where cases have sharply risen wear masks when in workplace common areas. Sometimes recommendations are worse than mandates as employers must decide for themselves whether to mandate masks (employers are also able to mandate that employees get vaccinated— view my partner, Colin D. Ramsey’s, blog here). Perhaps even more so than at any point during the COVID pandemic, many employees are opposing mask requirements, believing that their vaccinations provide sufficient protection.
The CDC also made recommendations not directed to employers but relevant for them to know. First, the CDC stated that fully vaccinated people might choose to wear a mask everywhere if they or someone in their household are immune-compromised or otherwise at increased risk of severe disease from COVID (or if a household member is unvaccinated). Next, the CDC added a recommendation that if fully vaccinated people have contact with someone who is COVID positive or suspected to be COVID positive they should get a COVID test 3-5 days after exposure and wear a mask in public indoor settings for 14 days or until a negative test result is received.
As employers may well have different policies for masked and unmasked employees, determining vaccination status becomes crucial. While employers are indeed entitled to ask employees the vaccination question, they should take care not to ask additional medical questions beyond the vaccination issue and not share any information received beyond those who need to know. For example, an employee responding to a vaccination status inquiry might have a disability and, absent a reasonable accommodation conversation, employers should not be discussing employee disabilities with them. This is particularly true if the employee is not vaccinated, as a disability could be the reason. Unless seeking a reasonable accommodation, it is wise to tell employees not to reveal disability-related information in response to a vaccination inquiry.
Obviously, this is a rapidly changing subject area, so employers must keep their policies updated and track the relevant local, state, and federal laws as they evolve. Please do not hesitate to contact us with any questions.
If you have any questions regarding the issues discussed above, or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Paul Keneally, the author of this piece, here or at (585) 258-2882.