As businesses begin to reintegrate employees into their pre-pandemic workplaces, many of our clients have questions regarding return-to-work issues. In this edition of Funny You Should Ask, we address two questions many of our clients have asked during the past week. The answers below focus on compliance with federal law. As always, employers will need to take state and local laws into consideration in addition to federal law.
1. What is the protocol for determining if employees are unsafe should they choose not to get vaccinated?
While more and more individuals are getting vaccinated, employers should continue to follow CDC guidance to determine whether employees (fully vaccinated or not) pose a health threat to others in the workplace as it is undetermined how vaccines will affect the spread of COVID-19. Due to that, current OSHA guidance is that employers cannot differentiate between vaccinated or unvaccinated employees in the terms and conditions of employment if they choose not to mandate vaccines. Thus, employers should continue taking precautions (depending on the circumstances of their facilities and other circumstances), such as:
(1) Encouraging all employees to wear a face covering and stay at least 6 feet apart from others. It is important that employees continue to wear a face covering and remain physically distant from co-workers and customers even if they have been vaccinated because it is not known at this time how vaccination affects transmissibility.
(2) Conducting daily in-person or virtual health checks (i.e. temperature screening) of employees before they enter the facility.
(3) Separating sick employees. Employees who appear to have symptoms upon arrival at work or who become sick during the day should be immediately separated from other employees, customers, and visitors, and sent home.
(4) Actively encouraging sick employees to stay home. Employees who have symptoms should notify their employer and stay home. Employees who are well but who have a sick household member with COVID-19 should also notify their employer and follow CDC-recommended precautions.
For now, employers should still take steps to protect its employees and others in the workplace. Employers play a key role in preventing and slowing the spreading of COVID-19 in the workplace. If you have any questions, please reach out to your Husch Blackwell attorney.
2. Employee has a condition (i.e. skin condition, rashes, allergies, persistent cold sores) that causes her doctor to advise she must use disposable face masks and cannot reuse them. Employees are permitted take their masks off at their desks, so this means she ends up going through several masks every day; every time she leaves her cubicle for any reason. Are we obligated to pay for the employee’s disposable masks?
Possibly. Some state and local regulations and orders require employers to provide face coverings. For example, California regulations require employers to provide face coverings and ensure they are worn by employees over the nose and mouth when indoors. Check your state and local rules to ensure compliance. Even if there are no specific government requirements, you may be obligated to if the employee has a medical condition or disability requests a reasonable accommodation under the ADA. While an employer may deny even a reasonable accommodation if it is an undue hardship or a direct threat, such as financial hardship, the undue hardship determination is extremely fact specific. If providing or paying for disposable masks becomes a financial burden, you are obligated to engage in the interactive process to explore other accommodations, such as reassignment, creating a separate workspace so that they are not near other employees, or remote work arrangements. Nonetheless, even if you do not have obligations under the ADA or state law, you may want to consider voluntarily providing or paying for face coverings, if possible, as employers have an overall duty to provide a safe and healthy workplace.
If you have questions about your obligations regarding COVID return-to-work issues, contact Tim Hilton or your Husch Blackwell attorney. This information is intended only to provide general information in summary form on legal and business topics of the day. The contents hereof do not constitute legal advice and should not be relied on as such. Specific legal advice should be sought in particular matters.