CORONAVIRUS FAQS FOR US EMPLOYERS (UPDATED: OCTOBER 20, 2021)
With rapid developments in local, state and federal guidance and law, the appropriate approach for each employer will vary depending on the nature of the work, industries served, location(s) and size, amongst other considerations. We will be updating these FAQs periodically, in line with the latest developments and best practices.
For COVID-19 information and to stay informed of the latest developments and webinars, please visit our Resource Center at www.mwe.com/coronavirus.
Click the questions below to see their answers:
Q 1: Can I require employees to get vaccinated before returning to work, or limit access to the worksite to fully vaccinated employees only? If so, what exceptions might our business have to make to a mandatory vaccination policy?
Q 2: What symptom screening, if any, should our company require of employees and/or visitors?
Q 3: If an employee and/or visitor has not been vaccinated, can I require that they wear a mask on-site?
Q 4: How can I implement a workplace vaccination program?
Q 5: What kind of proof of vaccination can I require from employees? Are there any limitations?
Q 6: Can I limit work travel only to those employees who have been vaccinated?
Q 7: After employees have been vaccinated, can they stop practicing other preventive measures, such as social distancing and wearing masks?
Q 8: What should an employer do if an employee calls in sick with side effects from the vaccine? Do I have to provide paid time off for employees and their dependents to get vaccinated?
Q 9: Are employers still required to have a COVID-19 prevention plan in place? What should be in it?
Q 10: Can employers incentivize employees to get vaccinated, such as with a bonus or other work perk?
Q 11: Can we implement different face covering/mask policies for fully vaccinated employees and those who are not fully vaccinated?
Q 12: Can we require employees who are versus are not fully vaccinated to wear different stickers on their badge so we can more easily implement different safety rules?
Q 13: Can we require employees to report if they have COVID-19 symptoms?
Q 14: Can we require that employees have their temperature taken at work? Are there any risks to requiring employees to have their temperature taken at work?
Q 15: What should we do if an employee informs us that they suspect they have COVID-19?
Q 16: An employee is experiencing mild illness symptoms, such as fever or cough, but has asked to continue working. Should we have the employee report to work?
Q 17: Can we require documentation from healthcare providers for employees who are sick with acute respiratory illness? If so, should we?
Q 18: If we require an employee to stay home because of COVID-19 concerns, and the employee does not have any PTO or paid sick leave to use, do we have to compensate the worker for the time away from work?
Q 19: If employees are working remotely, do we have to provide them with additional equipment, or can we have employees use their own equipment (e.g., personal computer, cell phone or printer)?
Q 20: We are requiring our employees to return to work (i.e., come back to the office). What can we do if an employee simply refuses to come to work because of general concerns related to COVID-19 or because they prefer to work remotely?
Q 21: Does our response to COVID-19 implicate any privacy laws or regulations?
Can I Require Employees to Get Vaccinated Before Returning to Work, or Limit Access to the Worksite to Fully Vaccinated Employees Only? If So, What Exceptions Might Our Business Have to Make to a Mandatory Vaccination Policy?
Generally, yes, subject to state and local law.
President Biden’s recent “Path Out of the Pandemic” Plan and Executive Orders issued on September 9, 2021, require certain federal contractor and healthcare employers to mandate COVID-19 vaccination for employees. These Orders also require large employers to mandate employees to either get vaccinated or test. For more details on President Biden’s Plan and the vaccination mandates, please see our article here: https://www.mwe.com/insights/president-bidens-covid-19-action-plan-will-your-company-be-required-to-mandate-vaccination/
While the federal government moves forward in its push to require vaccine mandates for certain employers, employers should also be aware of states that have enacted laws to, or that have bills pending that would, prohibit vaccine mandates. For example, the Montana legislature passed a law earlier this year defining “vaccination status” as a protected category, thereby prohibiting most employers from denying employment based on vaccination status. (The Montana law provides for certain exceptions, including for health care providers.) Other states may follow Montana’s example in response to the federal government’s recent spate of vaccine mandates. Employers should work with legal counsel to analyze which laws ultimately apply to them in the event that applicable laws conflict.
Any mandatory vaccination policy must provide a reasonable accommodation, if one is possible, if an employee cannot comply with the vaccination requirement because they fall under a protected category. Under federal law, employees may be entitled to a reasonable accommodation if they qualify for a medical or religious exemption. State and local laws may provide for other protections.
Note, however, that even if an employee has a qualifying disability or religious belief, practice or observance under federal law, this does not give rise to a per se right to exemption from a vaccine mandate. Rather, should an employee request an exemption for a legally protected reason, the employer and employee must engage in an interactive process to determine if a reasonable accommodation exists that does not pose an undue hardship to the employer and that sufficiently mitigates the direct threat that the unvaccinated employee otherwise poses in the workplace to themselves and others. State and local laws and Executive Orders may provide, or purport to provide, broader employee protections.
What Symptom Screening, if Any, Should Our Company Require of Employees and/or Visitors?
Employers have a general duty under OSHA to provide a safe workplace. When there is a substantial or high risk of COVID-19 transmission, it is a best practice to employ symptom screening. This would include requiring all individuals who are accessing in-person work sites to: 1) self-monitor for COVID-19 symptoms, and 2) stay home if they have any symptoms of COVID-19. Screening can take many forms, including the employee self-monitoring for COVID-19 symptoms before they depart for work, the employee being required to fill out a daily attestation of no symptoms or the employer conducting screenings upon arrival to the workplace.
Employers may also consider posting signage in and at the entrance to the workplace, sending reminders of the policy to employees and guests by email and including screening requirements as part of invitations for in-person events to remind employees and guests to screen for symptoms before entering the facility.
Some jurisdictions may still require employer-conducted screenings or require employees to explicitly attest to the lack of COVID-19 symptoms before entering the work site. All employers should be sure to comply with local requirements.
Employers who collect screening data must maintain the confidentiality of that information, including that this data should be stored in a location separate from the employee’s personnel file. Such data should be shared only on a need-to-know basis.
If an Employee and/or Visitor Has Not Been Vaccinated, Can I Require That They Wear a Mask on-site?
Generally, yes, subject to state and local law. While some states have sought to limit mask mandates, these limitations generally apply only to state-funded activities or facilities, and they do not impact the ability of a private employer to impose a mask mandate on-site. Employers that operate in states with laws prohibiting discrimination based on vaccination status should consult with legal counsel before implementing vaccination-based policies.
The Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) currently recommend masking for all individuals in areas of substantial or high rates of COVID-19 community transmission, regardless of vaccination status.
You can find out if you are in an area with a substantial or high rate of COVID-19 transmission by visiting the CDC’s COVID-19 Integrated County View tracking COVID-19 community transmission site: https://covid.cdc.gov/covid-data-tracker/#county-view
How Can I Implement a Workplace Vaccination Program?
It is important to develop a written policy for any workplace vaccination program to help ensure that it is implemented uniformly and that all aspects are fully and clearly communicated to all employees. At a minimum, policies should accomplish the following:
- Establish and clearly communicate the deadline for compliance. In doing so, employers should take into account the amount of time it may take for employees to become fully vaccinated, which could require up to 6 weeks from the first dose, depending on the vaccine obtained.
- Provide avenues for employees to communicate with management regarding any questions or accommodation requests.
- Include a procedure for the employer to review and address accommodation requests in a confidential way, treating similarly situated employees in a uniform manner. Employers should identify how an employee can submit a request for accommodation, including who to direct such requests to, and they should consider developing forms for employee use to request accommodations based on disability, religion or other reasons.
- Employers must ensure that human resources and other COVID-19 task force teams responsible for implementing the policy and analyzing accommodation requests are trained on best practices.
What Kind of Proof of Vaccination Can I Require From Employees? Are There Any Limitations?
Employers can require employees to provide proof of vaccination, including in the following forms:
- Showing the employee’s original vaccination card;
- Showing the employee’s original vaccination medical record;
- Displaying a mobile app to which the employee has uploaded their vaccine information (i.e., New York’s Excelsior Pass); or
- Providing or showing a copy of the employee’s original vaccination card or vaccination record.
Note that many states and local jurisdictions have imposed vaccine mandates for certain industries, such as healthcare and education. Such mandates may specify and require certain types of proof be used to verify vaccination status (e.g., originals only versus copies of the employee’s vaccination card, self-attestation not permitted).
Employers that are collecting copies of vaccination records or information from vaccination records should make sure to store employee’s vaccination information confidentially and separate from the employee’s personnel file.
The Equal Employment Opportunity Commission’s (EEOC) guidance for employers clarifies that the Americans with Disabilities Act (ADA) requires an employer to maintain the confidentiality of an employee’s vaccination information and recommends that employers explicitly caution employees not to provide any additional medical or genetic information when providing proof of vaccination.
Can I Limit Work Travel Only to Those Employees Who Have Been Vaccinated?
Generally, yes, subject to federal, state and local laws or rules prohibiting discrimination based on vaccination status.
As with all workplace policies, employers should establish a travel safety policy that is evenly applied and consistent with other safety policies to avoid any inference of discrimination. Employees who cannot receive a vaccination due to a legally protected reason may be entitled to a reasonable accommodation, if one is possible, as determined by the employer after engaging with the employee in the interactive process. Any accommodation must be reasonable, must not create an undue hardship to the employer and must sufficiently mitigate the direct threat otherwise posed to the employee or others caused by an unvaccinated employee engaging in work travel.
What Should an Employer Do if an Employee Calls in Sick With Side Effects From the Vaccine? Do I Have to Provide Paid Time Off for Employees and Their Dependents to Get Vaccinated?
As a general best practice, OSHA has recommended that employers should support COVID-19 vaccination for each employee by providing reasonable time and paid leave (e.g., paid sick leave or administrative leave) to each employee for vaccination and any side effects experienced following vaccination.
Some states and local jurisdictions have passed laws or implemented Orders that require employers to offer additional paid sick leave for reasons related to COVID-19, which may include vaccination-related absences (getting the vaccine and/or side effects). Other jurisdictions have clarified that any existing employer paid sick leave required under applicable state law can be used for vaccine-related side effects. Employers should work with legal counsel to determine what legal obligations may exist to provide paid leave for this purpose.
The Biden administration recently announced in September 2021 that OSHA will be publishing an Emergency Temporary Standard that will require, among other things, that large employers with 100 or more employees provide paid leave for vaccination. Details of this impending requirement have not yet been released.
Are Employers Still Required to Have a Covid-19 Prevention Plan in Place? What Should Be in It?
Some jurisdictions, such as California require employers to maintain COVID-19 safety plans with very specific action items.
In other jurisdictions, generally speaking, COVID-19 safety policies should include the following:
- General safety protocols (g., handwashing, masks, social distancing and sanitization);
- Training for employees on COVID-19 generally, how COVID-19 is transmitted, COVID-19 safety, proper mask wearing and vaccination;
- Symptom screening procedures;
- How the employer will monitor and correct COVID-19 hazards in the workplace;
- Methods to report COVID-19 safety concerns;
- Employer protocol for handling a symptomatic individual in the workplace, or an individual who tests positive for COVID-19 and return to work guidelines;
- Paid leave policies related to COVID-19;
- Vaccine policy, if any;
- Measures taken to maintain confidentiality of employee medical and health information; and
- Consequences for employees who fail to comply with safety policies.
Can Employers Incentivize Employees to Get Vaccinated, Such as With a Bonus or Other Work Perk?
Yes, employers can incentivize employees to get vaccinated so long as the employer does not acquire any genetic information when administering the vaccines in violation of the Genetic Information Nondiscrimination Act of 2008. Employers offering such an incentive should also consider accommodations that may be reasonable to provide for employees who cannot get vaccinated due to a legally protected reason.
Can We Implement Different Face Covering/mask Policies for Fully Vaccinated Employees and Those Who Are Not Fully Vaccinated?
While employers generally can implement different face covering/mask policies for fully vaccinated and unvaccinated employees (subject to state or local laws), there are practical issues to consider. For example, as we discussed in our May 17, 2021, article, imposing different employment policies based on vaccination status will likely highlight employee vaccination status (i.e., based on who is wearing a mask) and, therefore, draw attention to employee information that would otherwise be confidential (e.g., a protected status based on disability or religion).
It should also be noted that CDC guidance issued in July 2021 recommends that all individuals, irrespective of vaccination status, should wear a mask in indoor public spaces if they are located in areas of “substantial or high” levels of community transmission.
Can We Require Employees Who Are Versus Are Not Fully Vaccinated to Wear Different Stickers on Their Badge So We Can More Easily Implement Different Safety Rules?
This practice is not recommended by any governmental agencies overseeing implementation of COVID-19 safety plans. The EEOC has stated that the ADA requires employers to maintain the confidentiality of employees’ COVID-19 vaccination status and share that information only on a need-to-know basis.
Can We Require Employees to Report if They Have COVID-19 Symptoms?
Yes, employers may ask employees to report symptoms they are exhibiting. Employers may want to consider implementing reporting mechanisms that will help employees feel comfortable reporting this type of information confidentially and also allow the employer to efficiently track the information.
Can We Require That Employees Have Their Temperature Taken at Work? Are There Any Risks to Requiring Employees to Have Their Temperature Taken at Work?
Yes, you can require employees to take their temperatures at work, but there may be some risks associated with this practice.
While some jurisdictions required certain employers to take employees’ temperatures upon arrival at the workplace, most of these requirements were eliminated in 2021. Some states and localities do continue to recommend or require symptom screening, of which temperature taking can be, but is not required to be, one component.
The EEOC permits employers to take employees’ temperature due to concerns surrounding the spread of COVID-19 in the workplace. Taking an employee’s temperature is considered to be a form of medical examination, and the resulting temperature reading is considered confidential medical information.
When implementing temperature and other screening measures in the workplace, employers should consider the following:
- Employers should ensure that their screening procedures are safe and consistent. Consider applying screening protocols to all those entering the workplace, including employees, customers, contractors/vendors and guests, and provide proper notice of screening measures.
- Temperature taking in the workplace should be designed to maintain necessary confidentiality and safety during the taking of the temperature, including via social distancing, touchless thermometers (g., thermometer guns), privacy barriers or adequate spacing and proper PPE.
- Employers must ensure confidential storage of temperature information, to the extent information is stored.
To the extent more than a de minimis amount of time is spent waiting in line for temperature screenings, such time is likely compensable for non-exempt employees.
What Should We Do if an Employee Informs Us That They Suspect They Have Covid-19?
In many states, the legislature has either enacted laws or the governor or other designated governmental entity has issued an order instructing employers to implement a COVID-19 policy that addresses what the employer should do if they suspect an employee has COVID-19. Most of these state-issued policies contain similar guidance or requirements for employers to follow when addressing a potential COVID-19 case in the worksite. Generally, the employer should have a discussion with the employee reporting symptoms of COVID-19, as outlined below. Discussion of an employee’s confidential medical information should be handled by designated individuals within the company who are trained to handle sensitive information and who are knowledgeable regarding what questions may be asked pursuant to the relevant jurisdiction’s laws (e.g., human resources professionals who manage the company’s leaves of absence). Employee information shared with the employer should remain confidential.
The employer should do the following:
- Instruct the employee to stay away from the workplace (or to immediately quarantine and then leave the worksite safely, if on site).
- Instruct the employee to contact a medical professional immediately. The employer should not permit the employee to return to the workforce until the employee meets CDC guidelines or applicable jurisdictional requirements for when it is safe to return to work after experiencing COVID-19 symptoms or after testing positive for COVID-19.
- If the employee is found to have contracted COVID-19, the CDC and local health department should be contacted immediately. Typically this will be done by the employee’s healthcare provider. Note that employers may have an obligation to contact their local health department in the case of COVID-19 outbreak, depending on jurisdiction.
- If the affected employee had contact with any other employee or worksite during the infectious period, the employer should inform other potentially affected employees of the potential COVID-19 exposure (taking care to keep the affected employee’s identity private). Individuals who had close contact with a COVID-19-positive individual should quarantine at home and monitor for symptoms. Such individuals may telework during quarantine periods, if possible.
- If a COVID-19 case was present on site, depending on the circumstances, the employer may be advised to contact a qualified company to disinfect the job site or workplace in accordance with CDC recommendations (which varies depending on the date the COVID-19 case was present) so that it may provide assurances to other asymptomatic employees that it is safe to return to work.
- If the employee contracted COVID-19 in the workplace, documentation may be required by the employer, including an OSHA record of any serious work-related injuries or illnesses. OSHA has advised that COVID-19 can be a recordable illness if a worker is infected as a result of performing their temperature taken.
Employers should be aware of and comply with any local jurisdictional requirements to maintain pay and/or benefits during a period of quarantine or isolation due to COVID-19-related illness.
An Employee Is Experiencing Mild Illness Symptoms, Such as Fever or Cough, but Has Asked to Continue Working. Should We Have the Employee Report to Work?
No. Employees who are ill should not come to the workplace. If an employee reports to the workplace exhibiting symptoms, the employee should be isolated as soon as possible and sent home immediately.
If the employee is not too ill to work:
- For exempt employees, to the extent possible, employers can encourage flexible or remote working capabilities. Employers should work closely with exempt employees to determine if their position enables temporary remote working during the period of illness (again, to the extent the employee is well enough to work remotely) and what, if any, additional tools or technologies can assist in remote working to avoid or limit any business disruptions.
- For non-exempt employees, employers should review whether remote work is feasible, with particular attention to the employer’s ability to ensure continued compliance with wage and hour laws during remote work times. For employers that elect to permit certain non-exempt employee positions to work remotely, additional check-in procedures and oversight should be used to ensure productivity and compliance with timekeeping, breaks, and other federal, state and local wage and hour considerations. Employers should review and implement parameters for tracking of employee time, including monitoring proper and timely meal and rest periods (if applicable); overseeing, approving and tracking overtime; and facilitating supervisor management of employees to continue to meet business needs.
If the employee is too ill to work:
- Depending on where the employee is located and the employer’s internal policies, the employee may be entitled to use accrued vacation/PTO and/or paid sick leave during the employee’s time out of the business. Some states require employers to provide employees with a certain amount of paid sick time specifically dedicated to COVID-19 leaves of absence.
- To further incentivize employees not to come to the workplace when they are ill, employers may consider advancing additional PTO or sick leave to employees who do not have any accrued, unused PTO or paid sick leave to use at this time. In certain states, paid sick leave can be issued without any further obligation to pay out the additional time upon termination. Employers should contact counsel to design a state-law-compliant policy.
- Employee time away from the business may also be protected and governed by state and local law.
Can We Require Documentation From Healthcare Providers for Employees Who Are Sick With Acute Respiratory Illness? If So, Should We?
The answer to this question will differ based on jurisdiction (particularly in jurisdictions that maintain state or local paid sick leave laws) and circumstance.
Federal law generally permits an employer to require reasonable documentation from healthcare providers to support the existence of an illness requiring time away from the business or to certify the employee’s fitness to return to the workplace.
The ADA allows employers to ask employees to provide documentation from their healthcare provider to evaluate the extent of an impairment where an employee has requested an accommodation or the employer has an objective basis to believe the employee is unable to perform essential job functions because of an impairment.
In some jurisdictions, state or local law may further address whether an employer may require medical documentation from an employee who requires a short-term absence for illness or the illness of a family member, and whether the employer may request diagnosis information with such documentation. In some cases, documentation should not be required, particularly where the employee is using paid sick leave.
If We Require an Employee to Stay Home Because of Covid-19 Concerns, and the Employee Does Not Have Any Pto or Paid Sick Leave to Use, Do We Have to Compensate the Worker for the Time Away From Work?
First, if the employee sent home feels well enough to work and can perform their job duties remotely, the employer can allow the employee to work from home and should compensate the employee as though the employee were performing their work from the worksite.
If the employee cannot work remotely, then the employee may be entitled to paid leave depending on the applicable state and local jurisdictions. In response to COVID-19, a number of states passed legislation to provide employees with leave related to COVID-19. In California, for example, employers must provide paid leave or “exclusion pay” to those employees who are excluded from work (i.e., they must quarantine) because of a workplace COVID-19 exposure. Other states like New York have passed legislation to provide sick leave in the event of a future public health emergency. Several other local counties have also enacted paid leave requirements for employers to provide leave for employees for COVID-related reasons. Employers should consult with counsel regarding their specific jurisdictions of operation to confirm whether new laws have been enacted to impose additional leave obligations.
If Employees Are Working Remotely, Do We Have to Provide Them With Additional Equipment, or Can We Have Employees Use Their Own Equipment (e.g., Personal Computer, Cell Phone or Printer)?
Employers may generally require employees to use their own personal devices for work-related matters. Depending on the jurisdiction, employers may be required to reimburse employees for costs associated with the use of their personal devices for work purposes.
Employers that permit employees to use their personal devices to conduct company business should consider whether this may affect the company’s ability to protect the security of company data. For instance, employers may consider implementing security measures on those personal devices to protect company data and confidentiality, such as requiring employees to use password protection for their devices.
Employers should also ensure that they have written policies in place that define and communicate an employee’s lack of expectation of privacy on personal devices if used for work purposes.
If non-exempt employees are given remote access to perform work (e.g., access to work email on a cell phone), employers should set forth the expectation that work will only be performed during working hours and on-the-clock.
Employers also should keep in mind that their ADA responsibilities to individuals with disabilities continue during a pandemic. The EEOC has stated that if an employee with a disability needs the same reasonable accommodation at a telework site that the employee had at the workplace (e.g., a screen reader on an office computer for an employee with low vision), the employer should provide that accommodation unless it would result in undue hardship. If a requested accommodation would cause undue hardship, the EEOC advises that the employer and employee should work together to identify an alternative reasonable accommodation. Although the EEOC has acknowledged that the extraordinary circumstances brought on by the COVID-19 pandemic may result in some delay in addressing accommodation requests and providing accommodations where warranted, employers are encouraged to continue addressing such requests as soon as possible. Employers should make every effort to use interim solutions to allow employees to keep working, so that employees are not penalized due to the need for a reasonable accommodation, and to maintain the efficiency of the employer’s operations.
Does Our Response to Covid-19 Implicate Any Privacy Laws or Regulations?
It might, depending on the location and type of information implicated. For example, in California under the California Consumer Privacy Act, employers may collect COVID-19 vaccination statuses from employees, but they must give the appropriate notices beforehand about (1) the categories of data the company collects from employees and (2) the purposes for which such data is collected. This notice should be given at or prior to the point of collection. Privacy rights are complex and jurisdiction-specific matters. Employers should consult a privacy lawyer to discuss those issues.