What Should an Employer do about COVID-19? May 28, 2021 Guidance from the EEOC

June 3, 2021

As we continue to see improvement in the pandemic situation and increased vaccination rates, employers still face many COVID-19 questions. Employers always have a duty to provide a safe workplace. Following CDC, state and local health department guidance is still the best foundation for safety with regard to COVID-19 issues. The EEOC provided updated guidance on May 28, 2021, which is also helpful in continuing to navigate the pandemic:

What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws | U.S. Equal Employment Opportunity Commission (eeoc.gov)

Each employer must consider their own workplace and workforce (including ventilation, interaction required, social distancing capabilities and percentage of vaccinated individuals in the workplace), current medical knowledge, and local conditions in determining how best to maintain a safe workplace. Some specific suggestions for employers are included below.

Employers may require their employees to be vaccinated.

Employers can require all employees (and visitors) physically entering their workplace to be vaccinated, subject to reasonable accommodation requests by employees on the basis of disability or sincerely held religious beliefs. It is the employee’s responsibility to initiate a request for accommodation, but no “magic words” are required. Managers and supervisors should be able to recognize such requests and refer them to human resources or the appropriate senior manager in the workplace.

Employers may require proof of vaccination status.

If an employer requires documentation of vaccination status, the documentation must be maintained separately from an employee’s personnel file as a confidential medical record.

Employers may encourage employees to get the vaccine.

Education about vaccines, information about vaccination locations, assistance with transportation and time off are all ways to encourage employees to be vaccinated. The CDC has developed an excellent toolkit to properly educate workers:

Workers COVID-19 Vaccine Toolkit | CDC

Employers may offer incentives to vaccinated employees.

Employers may choose to provide cash payments, additional time off, or other incentives to employees who voluntarily provide proof of vaccination. If the employer is administering the vaccine program, the incentive cannot be so substantial that employees feel pressured to be vaccinated. If the employer is not administering the program, the incentive value is unlimited.

Employers may require employees to wear masks.

Employers may continue to require masking, additional PPE, social distancing and other precautions depending on each employer’s assessment of their workplace and local conditions. And masks can be required for unvaccinated employees and optional for others. Employers should ensure that unvaccinated employees are not harassed, and should take care to note that mask-wearing is not necessarily indicative of unvaccinated status. Employees may choose to continue to wear masks for many reasons (vaccinated but immunocompromised employees may want additional protection, there may be unvaccinated children or others in an employee’s home or an employee may simply feel more comfortable). No harassment on the basis of any COVID-19 issue or stereotype is permissible and employers should be diligent in protecting employees from this risk as well.

Employers do not have to continue to offer remote work.

Employers are not required to offer remote work, even if the employer did so previously in the pandemic. Documentation concerning effectiveness and productivity during any periods of remote work should be maintained.

Employers may ask employees about COVID-19 symptoms.

During a pandemic, employers may ask all employees physically present in the workplace about whether they are experiencing symptoms of the virus. Employers may also ask whether employees have been exposed to anyone diagnosed with COVID-19 or who has symptoms of the virus. And, during the pandemic, employers may ask whether employees have traveled to locations where health officials recommend post-travel quarantine.

Employers may require employees with COVID-19 symptoms to stay home from work.

Employers may ask employees who call off for illness if they are experiencing COVID-19 symptoms or if they have been exposed to, tested for, or diagnosed with COVID-19. Employers are always entitled to know the reason for an employee’s absence from work.

Employers may require fitness for duty documentation prior to a return to work.

Employers must provide reasonable accommodations to employees continuing to experience lingering symptoms of COVID-19 (a condition known as Long COVID or Post-acute COVID-19 Syndrome). The Department of Labor’s Job Accommodations Network has added information regarding COVID Long Haulers on its webpage below:

COVID-19 Long Haulers and the Americans with Disabilities Act (askjan.org)

Feel free to contact us with any questions.

This article is meant to provide a summary of potentially applicable issues and updates, is not comprehensive as to all potential legal issues or topics, and is not legal advice.


Patricia A. Wise

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