Vaccinated vs. Unvaccinated in the Workplace - Q & A

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Created on Wednesday, 21 July 2021 18:18

HR Partners received some great questions from one of our CEO clients recently about managing vaccinated and unvaccinated staff in the workplace.  Below is the Q & A, and our guidance:

Can we ask an employee about their vaccination status?  If so, do you have any recommendations on how to approach this?

An employer may request proof of receipt of a COVID-19 vaccination without violating the ADA. However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the ADA “job-related and consistent with business necessity” standard. We recommend that an employer only ask for proof of receipt of vaccine, with no subsequent questions. This will allow an employer to determine if the employee should wear a mask based on CDC and OSHA guidance.

How do we handle vaccinated vs. unvaccinated employees within the office?  Can we require the "unvaccinated" to wear masks during working hours or when they attend meetings?

Yes, recent OSHA guidance suggests providing unvaccinated and otherwise at-risk workers with face coverings or surgical masks. The guidance also suggests implementing physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas.

Are there any "do's or don'ts" related to treating vaccinated vs unvaccinated individuals?

Outside of requiring unvaccinated employees to wear masks and to social distance, we encourage employers to treat vaccinated and unvaccinated individuals equally to every extent possible. Failure to do so could result in ADA/HIPAA legal claims. Because these types of claims are so new and have not been addressed by either the court or state statutes, we do not know how they will be interpreted.

What, if anything, is the employer obligated to share with the entire staff regarding staff being tested for COVID or having COVID?

You may not give out any identifying information about the infected individual. Identifying the individual may violate ADA and HIPAA obligations. However, employers are required under OSHA’s general duty requirement to provide a safe workplace to promptly notify potentially exposed employees of their exposure and reduce additional exposures. We have created a notification template in the event that an employee contracts COVID-19.

Company is closely watching the global coronavirus (COVID-19) developments and following recommended guidelines. Our focus is on the health and safety of our employees.

It is our duty to notify you that an employee has tested positive for COVID-19. The affected employee remains in quarantine, and we are supporting them as they recover. We have notified all employees who we know were in close contact with this employee, as defined by the KHRC and the CDC.

The risk of transmission for employees who were not in close contact with this individual is assessed to be low. However, if you are experiencing symptoms, please stay home and seek medical attention.

Are there any best practices that we should consider for the office?  Such as providing Hybrid/virtual alternatives for meetings, encouraging social distancing, having staff place signs at their office if they want any visitors to be masked, etc.?

These are all great practices, but ultimately, they are business decisions. Keep in mind, some options may be easier administratively than others, and some practices may be received better than others. It is important to know and understand the culture of your employees when making these decisions. Additionally, keep in mind that nothing is set in stone. If you try something out that does not work, it can be changed or modified as needed. Whatever practices the employer chooses to implement should be clearly communicated to employees prior to implementation.

What is the organizational risk, including financial, if someone attracts COVID and becomes seriously ill?

The biggest risk to an organization is an outbreak among employees that halts business operations. We recommend cross training employees and having a secondary plan that enables essential employees to work from home, if necessary, in the event of an outbreak. Following both the CDC and OSHA guidance can help prevent this risk from occurring.

How much flexibilities are organizations providing to employees who may have family members that are "at risk" or children that are unable to get vaccinated?

This is ultimately a business decision. There are not currently any federal laws requiring paid time off for individuals who are at risk or who have children that are unable to get vaccinated. Most of our clients are requiring employees to use PTO for COVID-19 related absences.

Do you have questions or concerns?  Please don’t hesitate to reach out by email or phone (785-233-7860).