Returning to Work: Your COVID Employment Questions Answered

We’re more than a year into dealing with COVID-19, and the situation continues to be complex for employers and employees. With so many changes taking place—sometimes daily—around the latest CDC requirements and federal, state and local guidelines, it can be a challenge for employers to navigate the new post-pandemic work environment.

At Who’s Your HR?, we’re getting questions nearly every day about what’s acceptable, what’s legal and what the best practices are for employers who are thinking about bringing employees back on-site. Here are some answers to the most common questions we’re asked, to help you navigate these challenging times.

Can employers require employees to get a vaccine?

Technically, yes. Employers can set rules around vaccines as they see fit. But it is important to set policies in place so that everyone knows what is expected. It’s also vital to ensure that any vaccine policies are applied fairly, so that the company is not exposed to discrimination complaints.

Tracking vaccinations gets complex

Employers that choose to require vaccines must also be prepared to track vaccinations, evaluate and modify policies as needed, and offer reasonable accommodations for medical and/or religious purposes. This process is highly complex and must be both well-documented and flexible.

The question becomes, do you really want to insist all employees get vaccines? At Who’s Your HR?, we aren’t convinced doing so is the best idea. 

Consider incentives and perks

Since requiring vaccines can get complicated and negatively affect morale, we recommend that employers take a different approach. Rather than insisting on vaccinations, consider instituting policies and procedures that make it easier for employees to voluntarily vaccinate. Possible approaches can include:

• Additional PTO so employees have paid time to get vaccinated
• On-site vaccination clinic that employees (and possibly their families) can use
• Clear policies that appropriately accommodate those with disabilities and religious beliefs that conflict with getting the vaccine
• Bargaining with unions that have a voice in vaccine requirements for your employees
• Offer incentives and rewards such as gift cards, logo-bearing swag, credit at your company store, etc. Just be sure to recognize the value of the incentives as taxable income.

Is it legal to ask employees if they have been vaccinated?

Federal laws allow employers to ask about vaccination status. But state and local laws may differ. So, it is wise to consult an HR expert to get guidance on what is permitted in your specific location.

In addition, while you may be able to ask about vaccinations, there are restrictions around asking about an employee’s medical condition. For example, the Americans with Disabilities Act (ADA) requires employers to maintain the confidentiality of employee medical information.

Given that protecting health privacy is important, it is best for employers to do all they can to maintain that privacy. Remember, you never want to ask a question you don’t really want to know the answer to, so if you are requiring vaccines, simply ask a yes/no question concerning vaccination. Let employees know that they do not have to provide any additional information about their health condition or the reasons for their health decisions.

What happens if an employee refuses to be vaccinated? Can they be terminated?

This is an area that employers must navigate with caution. In general, it is possible to set policies around COVID vaccination, but accommodations must be made for those who have medical and religious concerns around vaccines. And it is wise to make sure HR policies are clear concerning grounds for termination. Consult with your HR professional and/or legal counsel before establishing such policies to be sure you are aware of any legal concerns that may arise. Every termination involves risk; so make sure your decision doesn’t violate other employment-related laws and is well documented.

However, maybe termination isn’t your only option! Keep in mind, there are other ways to address unvaccinated employees besides termination, such as:

• Offer a leave of absence
• Transfer employees to different positions if there are roles where vaccination is not essential — which requires clear, non-discriminatory policies and job descriptions noting which positions require vaccination and which do not
• Provide options for remote work where possible
• Limit the number of employees on-site each day
• Institute shift work to limit employee interactions and increase social distancing

Are employers expected to pay for employees to be vaccinated?

Fortunately, the COVID-19 vaccine is available free of charge to all people living in the U.S., so employers will not need to pay for the vaccine itself.

However, there are a number of federal and state laws and regulations that impact how employees are compensated for time off related to job-related healthcare.

• Employers are expected to pay employees for time spent on medical care required by the job. 
• The Fair Labor Standards Act requires that work-related expenses are covered if the cost would otherwise drop employees’ compensation below minimum wage. 
• The Occupational Safety and Health Administration (OSHA) COVID-19 Healthcare Emergency Temporary Standard requires health care employers to give employees time off and paid leave for vaccines and recovery from any side effects.

Do employers need to report side effects to OSHA?

Right now, it is not required for employers to record side effects from the COVID-19 vaccine on OSHA 300 logs. This is a temporary accommodation intended to help encourage vaccination among the U.S. population, and it applies through May 2022. After that, the requirement may be changed.

Can employers offer incentives for staff to get vaccines?

Absolutely! It is acceptable under federal guidelines to offer incentives to employees who obtain a COVID vaccination. But there are a few things to keep in mind as you consider such a policy:

• State and local regulations may come into play and should be reviewed for compliance.
• Per EEOC guidelines, employers must ensure that incentives are not “so substantial as to be coercive.” While the language is not specific, this indicates that careful consideration should be taken to make sure employees do not feel pressured to divulge private medical information. Let your HR professional help you make these determinations.
• An effective alternative approach is to encourage voluntary disclosure of vaccination with documented proof, rather than requiring it.

Can employers require employees to wear masks?

Given that the current CDC recommendation is that everyone wear masks indoors, even if vaccinated, employers are within their rights to ask employees to comply with CDC guidelines. It may be a smart policy to pay for or provide masks to employees to make compliance easier. And be sure to check on any state or local guidelines that may be related to masks. 

Note that aligning your policies and requirements with a credible source, such as the CDC or the health department, provides a level of risk mitigation for the company. And what employer doesn’t want that?

Is it legal to require employees to return to the office?

The short answer is yes—you can require employees to work on-site. But remember, your actions and how you handle these types of situations directly impact your company culture. So don’t take these decisions lightly. You should strategize your messaging and the impact of these decisions. Regardless, it is wise to set policies in place ahead of this decision and communicate them so that employees have an opportunity to choose what they wish to do. 

Keep in mind:

• The pandemic has taken an emotional and physical toll on many people. Their situations may be complicated by a number of concerns—such as caring for homebound seniors or children, being immunocompromised, or dealing with long-COVID symptoms.
• If accommodations for remote work are possible, consider allowing them for employees concerned about working in the office. 
• If you choose not to permit remote work, make sure you are clear on the reasons behind your decision.
• Communicate clearly any expectations you may have, such as that a refusal to work on-site may be considered a resignation of the position.

How should it be handled if an employee contracts COVID-19?

There are many regulations and guidelines that require a careful balancing act around this issue. From determining how to effectively do contact tracing without violating privacy, to determining how to apply the Families First Coronavirus Response Act toward sick leave, this is an area where having expert HR guidance is essential.

Remember, Who’s Your HR? Is Here to Help

As your company prepares to bring employees back to the office, or as you continue to navigate the complexities of COVID-19 and all its implications for your staff, remember that you don’t have to go it alone. Our team at Who’s Your HR? is ready to assist you. Call on us for guidance in creating new HR procedures, communication with your staff, training, input on how to implement new policies, and more—so you can have confidence you’re making the right moves.

Contact us today to set up a consultation.