Employers trying to regain a sense of normalcy and return employees to the workplace face legal issues regarding evidence of vaccinations, medical integrity and discrimination, say legal experts.
While federal guidance allows employers to question workers about their status and remove social distancing and disguise requirements for fully vaccinated employees, states and municipalities have introduced executive orders and laws that vary widely from requiring employers to track vaccinations to prohibiting them from ask workers and customers about their status.
US Equality The Employment Opportunity Commission said in a guidance issued on Friday that in most circumstances, employers can require their workers to be vaccinated for COVID-1
"Employers Try to Distinguish the Legal from the Practical and How to Follow These Rules," says Wendy Lazerson, San Francisco and San Jose-based chair of Sidley Austin LLP's work and working group, on a topic that "changes faster than , I think, in any area we've ever seen. "
In Washington, the State Department of Labor and Industries declared in late May that employers could relax the mask and social alienation mandate for vaccinated workers, requiring employers to verify and log status by checking vaccination cards or getting a signed certificate from the worker. and to make such information available to the department upon request.
"Requiring an employer to ask an employee for their private medical information and then effectively make it the state's enforcement arm for vaccination compliance" is ethically questionable, says Mark Harmsworth, Seattle-based small business leader for conservative think tank Washington Policy Center. He said the requirement would be challenging for small businesses lacking the resources to maintain these types of records and that he was concerned that the mandate would "erode trust between (employers) and employees."
Similarly, Santa Clara County, California, home of Silicon Valley, issued an order in mid-May requiring employers to ask all employees, contractors and volunteers working on site to disclose their vaccination status. Employers must also follow up every two weeks during the order with employees who are not vaccinated or declined to share their status, Lazerson said.
"It will require administrative maneuvering to set up systems and try to keep them in check … how to keep the information stored, she said." There is a lot to think about. "
On the other side of the spectrum, Montanas HB 702, signed into law on May 7, makes it illegal for employers to discriminate against an employee based on vaccination status, with some exceptions cut out for health care and nursing homes.
“In theory, if you discriminates against someone because of their vaccine status, that person can file a complaint of discrimination with the state body that enforces Montana's state discrimination law, says Brett Coburn, Atlanta-based partner, Alston & Bird LLP. State employers may want to think twice about ask unvaccinated workers to disguise themselves to avoid treating workers differently based on whether they have been vaccinated, he said.
"It puts (employers) in the position to choose between n two extremes – to stick to health and safety measures that have been in place for many months now for everyone or to remove it for everyone, says Coburn.
Employers in states with a vaccination registration mandate may inadvertently open up to accusations of discrimination against those who cannot be vaccinated because of disability or a sincere religious belief, experts say.
Employers must also consider some of the peer pressure issues that may arise between vaccinated and unvaccinated workers and be careful to treat all workers equally and not, for example, give fully vaccinated workers preferential treatment, says Lindsay DiSalvo, Washington-based associate at Conn Maciel Carey LLP .  "Employers only need to be careful about how they implement these policies and ensure that they do not treat people differently than these safety-related issues," she said.
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