Answering Questions About Face Masks, Vaccination Liability and More
Welcome to Workplace Version 2021: Cubicles stand emptied of their former occupants, who gather from home on laptop Zoom calls. The remaining office workers wouldn’t dream of leaving a communal birthday cake in the breakroom. Where did you get your latest mask? is standard water cooler banter (though everyone totes their own pre-filled water bottle these days). So much has changed in such a short amount of time; it can be tough for employers and employees alike to know what is admissible in the workplace.
Employers have questions:
- Can I require employees to elect the COVID-19 vaccine?
- What do I do if an employee refuses to wear a face mask?
- Are there privacy issues as we track employees who receive the vaccine?
Employees have questions:
- What if my child’s daycare or school closes or my child becomes quarantined? Can this affect my employment?
- If I have a disability, can my employer still require me to receive the COVID-19 vaccine?
- Is my employer required to let me work from home?
W3 Insurance and Janet McEnery, a labor and employment attorney with Stearns Weaver Miller, have answers. During a February 17 virtual webinar entitled Workplace COVID-19 Issues in 2021: Vaccinations, Face Mask Challenges, Extended Work from Home Orders and Incentives, Ms. McEnery, JD will address some of the frequent questions employers and employees are asking. These include (but are not limited to) the following queries:
Can I require my employees to receive the COVID-19 vaccine?
Total workplace vaccination seems like a reasonable request. Everyone vaccinated means everyone back to the office, right? According to the Society for Human Resource Management, many employers can reasonably require employees to be vaccinated. Loopholes exist for the disabled and for those who harbor sincere religious objection. Depending on the daily work situation, mandatory vaccination may make total sense – as it does with health care workers or others who come into contact with the public often – and less sense if all or the majority of employees work remotely.
Keep in mind that when the vaccine becomes widely available, employers could be liable if they do not require it. The employer must provide a safe and healthy work environment, as spelled out by the Occupational Health and Safety Act. If an employee does contract COVID-19 and believes it is due to their employer’s lax vaccination stance, the employer may face legal action.
Am I able to require proof of COVID-19 antibodies?
This is a ‘hard no.’ The Americans With Disabilities Act (ADA) prohibits employer-mandated antibody testing as a requirement for return to workplace activities.
What about a face mask mandate? Am I able to require them in the workplace?
Protective gear, social distancing and face masks: they’re the triumvirate of pandemic control. They’re also an employer’s right to require, but with caveats. For example, employers can require said gear and adherence to certain social distancing mandates. The OSHA recommendation is that employers encourage face coverings in the workplace, though in some situations they are not feasible (in an environment where chemicals may collect within the mask, for example).
If an employee states a religious reason or reports that disability prevents such an election, the employer must provide another option. This does not mean an employer has to drastically change workplace protocol, as any action that represents ‘an undue hardship’ is not required.
What do I do if an employee refuses to use a face mask?
Look to the root cause. Is it because the employee has a serious health condition that is covered under FMLA or a disability covered by the ADA? The employer can require the employee provide FMLA certification (this is completed by their health care provider) showing they are not able to perform the functions of their job with a mask as a result of their health condition. Reasonable accommodation under the ADA is also a feasible argument for anti-maskers. The employer may ask for reasonable documentation from the employee.
Florida follows the at-will employment doctrine; if an employee does not give sufficient proof that they are unable to wear a mask because of a valid reason, the employer is within their legal grounds to terminate.
Am I able to ask employees if a family member has COVID-19?
No. GINA (The Genetic Information Nondiscrimination Act) prohibits this.
If an employee misses work and I suspect it is because of COVID-19, can I ask them why they were absent?
If an employee misses work for any reason, you are within your rights as an employer to ask the cause.
What if an employee states a religious reason for their reluctance to vaccinate?
If the religious reason is sincere, the employee may not be required to vaccinate. An employer may ask for proof, but this will open them up to potential legal action from the employee. Keep in mind that an employee who states that they just do not believe in vaccines cannot submit this belief as a valid reason not to vaccinate.
Still have questions about COVID-19 and how to make the right decisions regarding work life? Register for the upcoming webinar here.