Best Practices for Reopening Offices during COVID

As we approach fall, many businesses are implementing policies and procedures for reopening offices. The Equal Employment Opportunity Commission (“EEOC”), the Occupational Safety and Health Administration (“OSHA”), and the Centers for Disease Control and Prevention (“CDC”) have all issued guidance and recommendations for businesses. Outlined below is an overview of best practices for reopening offices, addressing some key issues pertaining to vaccinations and mask wearing. As discussed below, the federal, state and local guidance is evolving quickly in this area, so it is important to continue to monitor developments.

Requiring Vaccination in the Office

Prior to opening offices, and as the employer considers whether to require vaccinations for all employees, the employer may want to consider surveying employees to determine whether most employees are or plan to be vaccinated. If most employees have received or will receive the vaccination, a mandatory vaccination policy may not be required. If the employer does mandate vaccinations, it should have a written policy and procedure in place to handle accommodation requests for religious and/or health related reasons. The policy should also address whether employees who refuse to get vaccinated, for other than religious or health related reasons, will be placed on leave or terminated, or otherwise permitted to work remotely.

While a number of states prevent employers from requiring proof of vaccination, North Carolina law permits employers to seek proof of vaccination, including requesting that the employee provide the employee’s vaccination card along with a valid government identification. Employers should not, however, collect information related to disability or religious beliefs, including through follow-up questions or by obtaining over-inclusive health records. The employer should simply ask for the type of information on the vaccination card, including type of vaccine, dates of doses, and where the vaccine was received. The employer should have employees provide this information to its human resource personnel rather than an employee’s direct supervisor. The employer should treat any vaccination related documentation as confidential.

Accommodation Requests for Medical or Religious Reasons

An employee may seek an exemption for religious or health reasons. In those instances, the employer may require the employee to provide supporting documentation in connection with this request. Such supporting documentation may include a letter from a health care provider that states that the employee is unable to obtain the vaccine for health reasons. For employees with religious concerns, supporting documentation may include a self-attestation that explains how the vaccine requirement contradicts a sincerely held religious belief. The employer, however, cannot ask for proof from a third party regarding an employee’s religious beliefs.

For those employees requesting exemptions from mandatory vaccinations, the employer should provide appropriate accommodations. Accommodations should be tailored to the circumstances and needs of the individual and the employer, and are not necessary if they would pose an undue hardship under the Americans with Disabilities Act (ADA).  Reasonable accommodations include wearing a face mask, working at a social distance, working a modified shift, periodic testing for COVID, teleworking or reassignment. If there are no reasonable accommodations, the EEOC Guidance advises that employers could exclude the employee from the workplace. As much as possible, however, the employer should try to provide accommodations to employees with health or religious concerns, which allow them to do their jobs, and which do not put them at a disadvantage as compared to vaccinated employees.

Workplace Safety and Handling Employees that Refuse Vaccinations 

For workplace safety, the employer may continue to enforce the mask mandate if it desires. Additionally, the employer may exclude employees from the workplace that are showing symptoms of COVID and may ask its employees about their symptoms to determine if an employee has COVID. The employer is not allowed to ask its employees about their family members’ symptoms or conduct antibody testing. If an employee is travelling to visit a client, the employer must monitor the client’s COVID policies and applicable state or local laws.

If an employee simply refuses a vaccine for other than health or religious reasons, federal law does not prohibit employers from preventing the employee from entering the worksite, disciplining the employee, or terminating the employee.

While guidance is still evolving, employers should be able to treat vaccinated and unvaccinated workers differently. For example, the employer should be able to ease in-office mask requirements for fully vaccinated employees, provided that such actions are consistent with state and local laws. If the employer does elect to treat vaccinated and unvaccinated employees differently, it should carefully monitor new guidance, including soon to be issued guidance from the Occupational Safety and Health Administration (OSHA). The employer should also be careful not to discriminate against unvaccinated employees for disability or health reasons.

FDA Emergency Use Status and Requiring Vaccinations

The vaccines in use have all been approved by the FDA under an emergency use authorization. Full approval by the FDA is not expected until the fall. FDA rules provide that recipients of an emergency use authorization vaccine must be notified that they have the option to accept or refuse a vaccine. While most experts do not believe this requirement applies to private employers, there are multiple lawsuits pending against employers that we need to continue to monitor.

Incentivizing Employees to get Vaccinated

There is no bright line guidance as to whether and how employers may incentivize employees, through wellness programs, financially, or otherwise, to take the vaccine. At this time, we would suggest that employers offer only modest incentives and ensure that the incentives are not coercive, and continue to follow updated guidance as it becomes available.

Mask Related Policies

The employer should make sure any mask related policies are consistent with the evolving OSHA regulations as well as state and local laws. As mask related policies around the state and country continue to fluctuate, the employer should expect an increase in employee concerns related to wearing a mask in the workplace and should prepare responses to anticipated questions and a clear policy regarding mask wearing. The employer should consider requiring proof of vaccination before allowing an employee to go without a mask in the workplace. Further, the employer should have a clear reporting procedure for employees to address mask related concerns, preferably by notifying human resources. The employer should consider identifying scenarios where mask wearing still may be expected, including when guests are in the workplace, when visiting customers or other third parties, or when mask wearing is still required by specific industries or federal, state or local guidelines. The employer could also survey their employee base and evaluate whether their employees have health-related concerns about mask wearing at the office. The employer may need to keep the survey anonymous, or ask general questions, so that they are not soliciting improper information, such as whether employees have children or immunocompromised family members at home.

Responding to Positive COVID Tests in the Office

If an office employee tests positive for COVID, the employer is not required to inform the other employees. In fact, the employer cannot identify the employee without consent. The employer may, however, be subject to lawsuits for reckless endangerment or negligence if they fail to inform other employees of potential exposure and they get sick. One compromise approach may be to tell employees that they were exposed to someone that has tested positive. The employer may also ask the employee who tested positive for COVID if they are okay with sharing their identity. In any case, the employer should follow CDC guidelines as to what is considered close contact for purposes of informing other employees.

Reach Out to One of Our Raleigh Business Attorneys for More Information 

For more information about employment law and corporate law issues surrounding COVID-19, please call Jason Schneider at Schneider Law Group at (919) 324-3600.

Schneider Law Group is a boutique business law firm in Raleigh, NC focused on general corporate law, mergers and acquisitions, securities law and tax strategy for growth-oriented businesses.