Employers trying to regain a sense of normalcy and bring employees back to work are facing legal issues related to vaccination records, medical privacy and discrimination, legal experts say.
While state guidelines allow employers to interview workers about their status and lift social distancing and masking requirements for fully vaccinated workers, states and municipalities have passed executive orders and laws that vary widely, from requiring employers to track vaccinations to towards a ban on asking employees and customers about their status.
The U.S. Equal Opportunities Commission for Employment said in a guideline released Friday that employers can, in most circumstances, require their workers to be vaccinated against COVID-19.
“Employers are trying to separate the legal from the practical and how they will obey these rules,” said Wendy Lazerson, San Francisco and San Jose-based co-chair of the Sidley Austin LLP Labor and Employment Practice Group of a subject that is “moving faster changes than I think in any area we’ve ever seen ”.
In Washington in late May, the state Department of Labor and Industry said employers could relax the mask requirement and social distancing mandate for vaccinated workers, urging employers to check and log status by checking vaccination cards or signing one Certificate received from the employee this information is available to the department on request.
“Requiring an employer to ask an employee for their private medical information and then effectively make them the state’s vaccination enforcement arm,” said Mark Harmsworth, Seattle-based small business director for Conservative Think Tanks Washington Policy Center. He said the requirement would be challenging for small businesses that lack the resources to keep these types of records and he was concerned that the mandate would “undermine trust between (employers) and employees”.
Similarly, Santa Clara County, California, home of Silicon Valley, issued an order in mid-May requiring employers to require all employees, contractors, and volunteers working on-site to disclose their vaccination status. Employers are also required to follow up every two weeks per ordinance with employees who are not vaccinated or who refuse to share their status, Ms. Lazerson said.
“It’s going to take some administrative maneuver to get systems up and running and making sure they’re keeping track … how they’re going to store the information,” she said. “There’s a lot to think about.”
On the other side of the spectrum, Montana’s HB 702, signed May 7, makes it illegal for employers to discriminate against an employee based on vaccination status, with a few exceptions for health care facilities and senior housing facilities.
“In theory, if you discriminated against someone based on their vaccination status, that person could bring a discrimination charge with the state agency enforcing the Montana State Discrimination Act,” said Brett Coburn, partner at Alston & Bird LLP of Atlanta. Employers in the state should think twice about asking unvaccinated workers to mask themselves to avoid treating workers differently based on whether they have been vaccinated, he said.
“It enables (employers) to choose between two extremes – stick to the health and safety measures that have been in place for many months or remove them all,” Coburn said.
Employers in countries with vaccination requirements can inadvertently discriminate against someone who cannot be vaccinated because of a disability or a genuine religious belief, experts say.
Employers also need to consider some of the peer pressure issues that can arise between vaccinated and unvaccinated workers, and be careful to treat all workers equally, such as not giving preference to fully vaccinated workers, said Lindsay DiSalvo, Washington-based associate at Conn Maciel Carey LLP.
“Employers just have to be careful how they implement these guidelines and make sure they don’t treat people differently beyond these safety-related issues,” she said.
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