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Employers attempting to regain a sense of normalcy and return employees to the workplace are facing legal questions regarding proof of vaccinations, medical privacy and discrimination issues, legal experts say.
While federal guidance allows employers to ask workers about their status and remove social distancing and mask requirements for fully vaccinated employees, states and municipalities have put into place executive orders and laws that vary widely from requiring employers to track vaccinations to forbidding them from asking workers and clients about their status.
The U.S. Equal Employment Opportunity Commission said in guidance issued Friday that under most circumstances employers can require their workers to be vaccinated for COVID-19.
“Employers are trying to separate out the legal from the practical and how they are going to comply with these rules,” said Wendy Lazerson, San Francisco and San Jose-based co-chair of Sidley Austin LLP’s labor and employment practice group, of a topic that is “changing more rapidly than, I think, in any area we have ever seen.”
In Washington, the state’s Department of Labor and Industries in late May stated that employers could relax mask and social distancing mandates for vaccinated workers, requiring employers to verify and log the status by checking vaccination cards or obtaining a signed attestation from the worker, and making such information available to the department upon request.
“Requiring an employer to ask an employee for their private medical information and then effectively making them the enforcement arm of the state for vaccination compliance” is ethically questionable, said Mark Harmsworth, Seattle-based small-business director of conservative think tank Washington Policy Center. He said the requirement will be challenging for small businesses that lack the resources to maintain these types of records and that he is concerned that the mandate will “erode trust between (employers) and employees.”
Similarly, Santa Clara County, California, home to Silicon Valley, issued an order in mid-May requiring that employers ask all employees, contractors and volunteers who work onsite to disclose their vaccination status. Employers must also follow up every two weeks under the order with those employees who are not vaccinated or decline to share their status, Ms. Lazerson said.
“It’s going to take some administrative maneuvering to set up systems and try to make sure that they keep track … how they’re going to keep the information stored,” she said. “There’s a lot to think about.”
On the other side of the spectrum, Montana’s H.B. 702, signed into law May 7, makes it unlawful for employers to discriminate against an employee based on vaccination status, with some exceptions carved out for health care and senior living facilities.
“In theory, if you discriminate against someone because of their vaccine status, that person could file a charge of discrimination with the state agency which enforces Montana’s state discrimination law,” said Brett Coburn, Atlanta-based partner, Alston & Bird LLP. Employers in the state may want to think twice about asking unvaccinated workers to mask up to avoid treating workers differently based on whether they’ve been vaccinated, he said.
“It puts (employers) in the position of choosing between two extremes — sticking with health and safety measures that have been in place for many months now for everybody or removing it for everybody,” Mr. Coburn said.
Employers in states with vaccination recording mandates may inadvertently open themselves up to charges of discriminating against those who are unable to be vaccinated because of a disability or a sincerely held religious belief, experts say.
Employers also need to consider some of the peer pressure issues that could arise between vaccinated and unvaccinated workers and be careful to treat all workers equally and not, for instance, give fully vaccinated workers preferential treatment, said Lindsay DiSalvo, Washington-based associate at Conn Maciel Carey LLP.
“Employers just need to be careful how they implement these policies and make sure they’re not treating people differently beyond these safety-related issues,” she said.
More insurance and workers compensation news on the coronavirus crisis here.