Are you keeping up-to-date with the new COVID-19 protocols that apply at work? If not, we have you covered.
At Gardner Employment Law, we pride ourselves on staying up to date on changes in the law. If you need advice on any matters related to your employment, give us a call.
What Are the New OSHA Updates for Work?
According to the latest notice by OSHA (Occupational Health and Safety Administration), most workplaces no longer need to provide any protection from the coronavirus where employees are fully vaccinated. In accordance with the new standard, the rule exempts fully vaccinated workers from masking, distancing, and barrier requirements when working in well-defined areas where there is no reasonable expectation that a worker or other person with suspected or confirmed COVID-19 will be present. Only healthcare workers will be required to continue these protections at work and only for the next 6 months.
“The rules require employers to draw up a virus protection plan, and tighten requirements for recording and reporting COVID-19 cases among workers. They also require employers to provide workers with paid time off for COVID-19-related absences, including getting vaccinated and recovering from the shot’s side effects,” as explained by the Houston Chronicle.
What If An Employee Refuses to Get a Vaccination?
Remember that the law permits employers, as OSHA requires, to institute measures that they believe are needed to maintain a safe working environment. It is lawful for an employer to require all employees to become vaccinated. There are only two exceptions: (1) religious and (2) medical. An employee who cannot be vaccinated due to a disability (covered by the ADA) or a sincerely held religious belief, practice, or observance (covered by Title VII) may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business, according to the EEOC. Many employers now require employees to apply for an exemption and provide proof of coverage under one of the 2 exceptions.
Reasonable accommodations include; wearing a face mask, social distancing, modified shifts, telework arrangements, or work reassignment. Keep in mind, absent these two exceptions, your employer can require you to get a vaccination. We discussed this more in detail in our previous blog, on “Can My Boss Require Me to Get a COVID Vaccination?”
Recently in Bridges v. Houston Methodist Hospital, a widely publicized case, Houston’s Methodist Hospital gave its 25,000 employees notice that all must be vaccinated by a certain date or face termination. Employees who qualified for the 2 exceptions still would be required to wear masks and take other precautions. Several employees refused to become vaccinated and filed suit in federal court. They lost. In his order dismissing the lawsuit, the federal judge stated:
Methodist is trying to do their business of saving lives without giving them the COVID-I9 virus. It is a choice made to keep staff, patients, and their families safer. Bridges [lead plaintiff] can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.
If a worker refuses an assignment, changed office, earlier start time, or other directive, he may be properly fired. Every employment includes limits on the worker’s behavior in exchange for his remuneration. That is all part of the Bargain.
As we explain in Performance Improvement Plan, based on Hathaway v. General Mills employers can change the terms and conditions of one’s employment at any time provided that the employee is given unequivocal notice of the change beforehand. If the employer equivocally notifies the employee of the changes, the employee’s continuing employment will constitute acceptance of the new conditions as a matter of law.
The New York Times describes incentives for employees to get vaccinated, stating, “Companies are considering whether to offer incentives for employees to get vaccinated, or to show proof of vaccination, while stopping short of a mandate. But even trying to nudge workers can be legally fraught.”
Do I Have to Disclose my Vaccination Status at Work?
Yes, but only to your employer and only under protected circumstances. Under the EEOC guidelines, any information about an employee’s COVID-19 vaccination is confidential medical information under the ADA (Americans with Disabilities Act). The ADA requires an employer to maintain the confidentiality of employee medical information, including confirmation of COVID-19 vaccination. “While the EEOC permits employers to obtain a ‘proof of receipt’ of vaccination, the only additional guidance the EEOC offers is to warn employers against requesting medical information during the verification process to avoid triggering an ADA or GINA violation,” as stated by the National Law Review.
Have you fulfilled your Vaccination Requirements?
On May 28, 2021 the CDC announced updated recommendations for those who are fully vaccinated. Those persons may “resume activities without wearing masks or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidance.”
According to the CDC, fully vaccinated people can now safely gather indoors with other fully vaccinated people and can refrain from quarantining and testing for COVID-19 following a known exposure so long as they remain asymptomatic. (The CDC considers someone to be “fully vaccinated” at two or more weeks after receiving the second dose of the Pfizer or Moderna vaccines, or the single dose of the Johnson & Johnson vaccine.)
What Is the Texas Vaccine Passport Ban?
In recent news, Governor Greg Abbott signed into law a ban on businesses that would require a COVID-19 vaccine “passport.” Texas Senate Bill 968 prohibits businesses from asking customers of their vaccination reports. As explained above, employers can inquire about employees’ vaccination status in a confidential manner and can even require employees to become vaccinated, but business owners cannot ask customers whether they are vaccinated. Nevertheless, businesses can and should continue to implement COVID-19 safety protocols in accordance with federal and state guidelines.
Contact a Lawyer
If you need advice regarding the new COVID-19 protocols, feel free to contact us.