The past year has been tough for most employers. Those who have been able to continue operating have had the challenge of having some employees work remotely because public health rules required them to remain at home. Others were afraid to leave home for fear of catching COVID-19. Employers had to deal with travel restrictions, mandatory masks and social distancing, disinfecting the workplace, mandatory paid sick leave and extended family leaves of absence. Now with the advent of COVID-19 vaccines, employees may be returning to the workplace, but that presents a new set of questions and challenges.
To help guide employers through the maze of overlapping restrictions and requirements, we’ve assembled some of the important questions being asked by our clients, with answers to help set you in the right direction.
Q: Can I require my employees to get the COVID-19 vaccine?
According to the federal Equal Employment Opportunity Commission, employers may mandate that their employees get vaccinated in order to come to work, however, as with most employment issues, there are exceptions. The law allows employees to refuse to be vaccinated for medical or religious reasons, under certain circumstances. For many employers, the compromise approach is to encourage employees to get vaccinated, but not make vaccinations mandatory.
Q: Can I fire an employee who refuses to get vaccinated?
The answer depends, in part, on why the employee is refusing to be vaccinated. If the reason fits one of the medical or religious exceptions, then the employee cannot be disciplined for refusing. If the employee refuses due to a fear of the vaccine or due to a philosophical opposition to vaccines, then the employee can be disciplined. Each must be evaluated on a case-by-case basis, however, and the decision should be based on the particular facts.
Q: If an employee refuses a vaccine, can I refuse them entry to the workplace?
Yes, because if you can require employees to be vaccinated, you can deny entry to those who don’t get one. For those employees who have a legitimate justification for refusing, you are safer to have those employees work remotely if at all possible, rather than refusing them any opportunity to work. If you automatically terminate employees, rather accommodating them, such as by allowing telework, you may risk creating liability under a different aspect of the law.
Q: Can I ask my employees if they received the vaccine, and can I require them to provide proof they’ve been vaccinated?
Yes, employers can ask employees if they have been vaccinated because the law does not consider that to be inquiring about an employee’s medical condition. For the same reasons, you can request that an employee provide proof of having been vaccinated, such as a card issued by the county. Beyond that, an employer cannot ask an employee why they have not been vaccinated because the question is reasonably likely to put the employee in a position to have to disclose confidential medical information.
Q: Should vaccinated employees be required to continue face coverings, distancing, and other safety protocols in the workplace?
Yes, even if employees are vaccinated, they still must be required to wear masks and practice social distancing at work. This is necessary because although a vaccinated person is less likely to contract COVID-19, he or she still could be a carrier of the virus and transmit it to others. In addition, with all of the new variants of the virus arising in different places around the country and around the world, it is too soon to know how effective the vaccines will be against those variants.
Q: Can I use contact tracing to help stop the spread of COVID through my workforce?
Yes, as an employer you can engage in contact tracing within your organization to determine which employees an infected employee had contact, including interviewing the infected employee. You are permitted to advise potentially exposed employees about their potential exposure, but must keep the identity of the infected employee confidential (although employee self-exposure to others is fine, provided the employer Is not the source). In addition, an employer may disclose the name of an employee to a public health agency when it learns that the employee has COVID-19.
Q: Must I grant paid leave for employees who voluntarily travel to allow them to quarantine?
New Jersey’s travel advisory states that anyone traveling outside of NJ, NY, PA and DE should quarantine upon return. The quarantine is either 7 days with a negative test result on day 4 or 5 or 10 days with no test. While employers must give the time off, employers are no longer required to grant up to 10 days paid sick leave under the federal First Families Corona Response Act (FFCRA). Nevertheless, employees may use paid sick leave earned under the NJ Earned Sick Leave law, which requires employers to grant employees a minimum of up to 40 hours of sick leave per year (1 hour for each 30 hours worked). Once employees exhaust their available paid sick leave, you still should give them the time to quarantine, but it need not be paid time off (unless you offer more generous benefits under your own paid time off policy).
Q: Am I required to allow employees to work remotely if they are at a higher risk for COVID-19 due to their age or because they are concerned about infecting a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition?
No, an employer is not required to accommodate an employee is at higher risk solely due to age (generally 65 and older). Likewise, an employer is not required to accommodate an employee based on medically-related needs of a family member or other person with whom the employee is associated. That said, be cautious because older workers also may have an underlying medical condition, which would qualify them for an accommodation, such as telework. In addition, when making decisions, remember that federal law prohibits discrimination (differential or disparate treatment and harassment) based on an employee’s association with an individual with a disability.
About the Author
Douglas S. Zucker of Weiner Law Group focuses his practice primarily representing private and public sector employers, including public libraries, and not-for-profit organizations in all aspects of labor and employment law, and in providing counseling to individuals and executives on employment and post-termination release agreements. Many of Mr. Zucker’s clients are small to mid-sized and closely held businesses, for which he also performs a variety of services, involving business contracts, general business and corporate issues, and commercial litigation.