Employers are continuing to face tough decisions as they navigate the ever-changing COVID landscape. Vaccinations are now widely available and mask mandates are being lifted as state and federal government officials urge people to return to pre-pandemic activities. For some, these new developments may be driving decisions to have employees return to the office. Resourcing Edge is here to provide helpful information to ensure our clients are making the best decisions for their company and employees.

Recent Centers for Disease Control and Prevention (CDC) guidelines, stipulate that “fully vaccinated people can resume activities without wearing a mask or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance”. The Occupational Safety and Health Administration (OSHA) has instructed employers to follow the CDC’s mask guidance for fully vaccinated employees. It is critical for employers to understand any state or local laws that may continue to require more stringent mandates.

The following recommendations apply to non-healthcare settings. For related information for healthcare settings, visit Updated Healthcare Infection Prevention and Control Recommendations in Response to COVID-19 Vaccination.

For employers who have made, or are making, the decision to return their employees to offices, there are several matters to consider in order to return safely.

Make sure you have a Return Strategy

The CDC has provided the CDE Resuming Business Toolkit as a resource for employers who have decided to return employees to the office. This resource offers a wealth of information on ensuring a safe workplace for your employees. Employers are encouraged to proactively identify exposure concerns, hazard controls, and administrative controls. Although these measures may seem similar to previously provided guidance, the need for diligence to protect your staff still exists. This will be especially important for any employee that is not fully vaccinated. Your employees will need to feel confident that their safety is a priority.

OSHA has also provided additional information on safeguarding employees in the workplace. Their focus in the recently released Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace shifts to protections for unvaccinated and otherwise at-risk employees.

Most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated. Employers should still take steps to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces.”

In addition to important information for employees on how to protect themselves, the guidance also outlines beneficial recommendations for employers: paid time off for vaccinations, procedures for unvaccinated employees, education of policies and procedures, and environmental precautions, just to name a few.

Mask and Vaccination Status

Another aspect to consider for employers will be whether they will mandate their employees be fully vaccinated before returning to the office, encouraging rather than requiring employees to vaccinate, or just remain silent in that regard.  The guidance from the Equal Employment Opportunity Commission (EEOC) indicates that, generally, employers can require employees to get the COVID vaccine as a condition of continued employment. However, employers who do so will need to consider making exceptions for employees who cannot get vaccinated because of a disability or religious belief.

Employers will also need to consider if they will require disclosure from employees on their vaccination status. As mentioned above, it will be critical for employers to understand any state or local laws that may continue to require more stringent mandates related to masks. Although the CDC has provided guidance, some state or local laws may still require individuals to wear masks and social distance.

Employers have several options on how to address vaccination status/documentation:

  • Option 1: Continue to require employees to wear masks. This option presents the lowest risk to employers because it will not present conflicts with state or local laws that still require face coverings and require no documentation. This option also protects the employer from potential obligations of the Americans with Disabilities Act (ADA), Title VII, or other laws prohibiting discrimination on the basis of disability or religious beliefs. Although there is an inherent protection for employers, this option may not be well received from vaccinated employees who are ready to return to a more normal work environment.
  • Option 2: Provide proof via vaccination card or attestations from employees of their vaccination status. It is important that when collecting this information that employers control access to the information, keep it confidential, and limit its use. This information should remain confidential. Employers must be careful to not solicit or collect any medical information or any other information related to why the employee may or may not have received a COVID-19 vaccine.
  • Option 3: Follow the honor system. This is the least advised approach, but an option none the less. Employers may choose to only rely on the integrity of their employees following protocols based on their vaccination status without providing any type of documentation. As you can imagine, this option poses the most risk to employers for potential litigation.

Regardless of which option an employer decides to pursue, communication with employees will be vital. Employers should explain why the employer is choosing to move forward with their strategy.

So what about Masks?

Employers that require their employees to be fully vaccinated before returning to the office can remove the mandate for masks all together, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.

Employers that do not mandate vaccinations will need to create and/or update policies as it relates to masks. Fully vaccinated employees would not have a mask requirement; however, unvaccinated employees would continue taking all previously established precautions until they are fully vaccinated. These precautions include such measures as temperature checks, social distancing, and wearing a mask while moving throughout the office or within 6ft of another employee.

Communication to Employees

Employers should consider the manner of returning employees based on their company culture and business needs. This could include having everyone return at once, creating a phased schedule based on job roles/location/etc., or allowing for hybrid roles where employees work from home and in the office. This would allow for a rotating schedule of onsite staff to keep the total number of employees at a reduced rate.

Employees should receive ample time to prepare for returning to the office, providing employees the opportunity to arrange for childcare, transportation, etc. Some employees have been working remotely for well over a year; therefore, they may require major adjustments to return to the office. Click Here for a sample Welcome Back letter that can be customized for distribution to employees.

Create or update existing policies where appropriate and communicate those policies to your employees. These policies should outline expected behavior/protocols for sanitizing the work environment and any requirements for vaccinations, masks, and social distancing. In addition, it is highly recommended to seek the advice of an attorney to draft policies related to Covid to ensure compliance with various federal, state, local, tribal, or territorial laws, rules, and regulations.

At Resourcing Edge, we understand the unique challenges employers are facing when making decisions for their companies. We hope that we have provided some useful guidance and consideration for returning employees to the office safely while remaining compliant with rules and regulations. Employers should explore the various paths available to you with your legal counsel before adopting any of them, especially in light of rapidly changing state and local laws in this area. As always, reach out to your Client Account Manager if we can be of assistance.

Jami Beckwith
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