Employers across the country have been tasked with weighing the pros and cons of implementing various COVID-19 risk mitigation policies, including requirements regarding the COVID-19 vaccine. In some instances, a mandatory COVID-19 vaccination policy may not be the right choice for an organization. For example, employers who now have an entirely remote workforce with employees that do not interact in person, with the public, or with clients may not need a COVID-19 vaccine or risk mitigation policy. However, other employers may have employees that meet in person and decide that a mandatory vaccination policy would hurt the organization more than help it. In these cases, it is still crucial for employers to ensure a safe work environment and encourage employees to get a COVID-19 vaccine without mandating it. Please stay informed about federal and local requirements, including the President’s recent requirement for companies with 100 or more employees to require COVID-19 vaccination.
Creating a safe work environment if not requiring COVID-19 vaccination
OSHA (Occupational Safety and Health Administration) has released updated guidance on maintaining a safe workplace during the COVID-19 pandemic. These measures include:
- Ensuring all employees who are infected or showing symptoms are separated from other employees in the workplace.
- Requiring employees to distance themselves physically in communal work areas.
- Maintaining your work environment’s ventilation systems for proper airflow.
- Mandating face coverings or other PPE for employees and requesting the same for any customers, visitors, and guests who may enter the workplace.
- Conducting routine cleaning and disinfection of the entire workspace and common areas.
- Educating and training employees on what the organization’s COVID-19 policies and procedures are and enforcing those policies and procedures.
- Creating a robust anti-retaliation policy for employees to voice safety concerns about COVID-19 hazards and other safety concerns to the organization.
In addition to the guidance from OSHA, employers may perform temperature screenings for employees entering the workplace. The EEOC (Equal Employment Opportunity Commission) guidance states that employers can measure an employee’s body temperature but warn that some people who have contracted COVID-19 may not have an elevated temperature.
Mask mandates, including those set by state and local governments, may have caused tension for organizations trying to enforce safety in the workplace. It is essential to be prepared to address employees who refuse to wear masks.
- Remain calm
- Remind employees of the health and safety reason for wearing masks in the workplace
- Encourage an open dialogue
Employers will need to be prepared to address confrontations, socially or politically driven objections, and policy violations. In some instances, such as working with manufacturing equipment, wearing masks may cause a safety concern. In these cases, employees should be offered an accommodation that maintains their safety and the health and safety of other employees.
Policies that encourage COVID-19 vaccination rather than mandating it
While it may not be the best option for some organizations to create a mandatory vaccination policy, employers may choose to implement a policy that encourages employees to get vaccinated. These policies should reiterate the organization’s commitment to providing and maintaining a safe work environment, including risk mitigation requirements, and can include incentives for receiving the COVID-19 vaccine such as:
- Wellness programs
- Compensation incentives
- On-site vaccinations
- Paid time off to receive the vaccine (may be required under federal and state law)
Inquiring about employees’ COVID-19 vaccination status
On May 28, 2021, the EEOC updated its guidance on workplace COVID-19 vaccination policies and employee accommodations. The new guidance states that employers may ask employees about their COVID-19 vaccination status and require proof from employees. However, evidence of COVID-19 vaccine status is considered personal medical information, and therefore employers are required to keep this information confidential. It is important for employers not to ask for any additional information about an employee’s health status.