Getting the Band Back Together

At the end of May, the CDC issued new guidelines for COVID. Basically, the recommendations say that if you are fully vaccinated, you can participate in almost any activity without a mask. If you have not been vaccinated, the CDC still advises you to wear a mask unless you are basically outdoors with members of your household or a small group of fully vaccinated family or friends.

As a result, we loosened our restrictions here at the office for employees and clients. Now, if you have been vaccinated, you do not need a mask anywhere in the building. If you have not been vaccinated, we still ask you to please wear a mask, except when employees are alone in their office.

I would say that about 85% of our employees have been vaccinated, and about 90% of our folks are back in the building. It’s truly joyful to see people’s entire faces again in person and not on a Zoom call!

While we have not required employees to be vaccinated, some businesses have or have considered it, but were unsure of the legal implications.

Well, last week the Equal Employment Opportunity Commission released guidance that employers can legally require their employees to be vaccinated. In addition, they can legally provide incentives for getting the COVID-19 vaccine, such as cash or extra vacation days. The incentives must not be so substantial as to be “coercive,” however, the guidance didn’t offer details of what bonuses would be disallowed.

“The updated technical assistance released today addresses frequently asked questions concerning vaccinations in the employment context,” said EEOC Chair Charlotte A. Burrows in a statement. “The EEOC will continue to clarify and update our COVID-19 technical assistance to ensure that we are providing the public with clear, easy-to-understand and helpful information,” she continued. “We will continue to address the issues that were raised at the Commission’s recent hearing on the civil rights impact of COVID-19.”

Even if businesses require their employees to be vaccinated, they still must provide reasonable accommodation for employees who are exempt from mandatory immunization under the Americans with Disabilities Act and Title VII of the Civil Rights Act, so long as the accommodation does not pose an undue hardship on the operation of the employer’s business.

Examples of reasonable accommodations for unvaccinated employees in the workplace include wearing a face mask, working at a social distance from co-workers or non-employees, working a modified shift, getting periodic tests for COVID-19, working remotely, or finally, accepting a reassignment.

If employers offer on-site vaccinations, they also have to be wary of violating the Health Insurance Portability and Accountability Act, which requires that employees’ personally identifiable information should remain confidential. Pre-vaccination screenings often ask for this confidential information. For that reason, officials recommend having a third-party medical provider or pharmacy administer the vaccinations, as they have training protocols in place to deal with confidential medical information.

Despite the new guidance from the EEOC, some experts say the guidance lacks necessary detail and is overly vague. They fear a floodgate of lawsuits opening as companies welcome employees back to the physical workplace.

Personally, I’m loving seeing my co-workers’ and my clients’ faces again, so I’m hoping that more businesses considering opening up will ‘give it a shot.’

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Reg P. Wydeven

Elder Law and Estate Planning Attorney at McCarty Law LLP
Hoping to follow in his father’s footsteps from a young age, Reg’s practice primarily consists of advising individuals on estate planning, estate settlement and elder law matters. As Reg represents clients in matters like guardianship proceedings and long-term care admissions, he feels grateful to be able to offer families thorough legal help in their time of need.

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