Despite hopes that the COVID-19 pandemic would be behind us by now, the emergence of the more transmissible Delta variant and consumer opposition to vaccination use are leading to resurgence of infections and infection rates. Those health events are, in turn, causing local, state and now the federal government, governmental agencies, and employers, to revisit, and, in some instances, reinstate, workplace health and safety policies. Just as COVID health risks have not disappeared, so, too, Employers who do not remain compliant with changing rules are, or may become, exposed to liability or penalty.
While cases in Michigan remain relatively low, and the state government has indicated that no changes in policies are imminent, it’s important for employers to stay on top of the latest COVID-related developments. If we’ve learned anything over the last 16 months, it’s that we need to expect (and prepare for) the unexpected.
Can an employer mandate that its employees be vaccinated?
In May, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) confirmed advice we had provided (see, EEOC Issues New Guidance on Workplace Vaccine Policies – FraserTrebilcock Blog (fraserlawfirm.com) that an employer mandate is allowed with respect to COVID vaccines allowed under Emergency Use Authorization (“EUA”) by the FDA, subject to the limitations discussed in the next section. The EUA-authorized vaccines are those manufactured by Pfizer, Moderna and Johnson & Johnson. Additionally, the Department of Justice released a Memorandum of Opinion on July 6 indicating that federal law “does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject” to an EUA.
Many employers have already announced vaccine mandates in both the public and private sectors. President Biden announced on July 29 that all federal workers must be vaccinated for COVID-19 or be subject to strict testing measures. Some state (e.g., California) and municipal (e.g., New York City) governments have imposed similar requirements for their employees. In the private sector, beginning primarily with healthcare providers, but increasingly in non-healthcare, employers including Google, Morgan Stanley, Goldman Sachs and others are also requiring that employees be vaccinated.
What exceptions must be allowed if vaccines are mandated?
Employers may mandate vaccines as long as they comply with the reasonable accommodation provisions of the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964, and other equal employment opportunity law considerations, including accommodations for medical or religious reasons. For more on the EEOC’s guidance regarding vaccines and reasonable accommodations, please reference our prior analysis of these issues.
Can employers ask their employees about their personal vaccination status?
Yes, but once that question is answered, employers should avoid inquiring about further medical information or history. We also covered this issue in our discussion of EEOC vaccine guidance. While federal guidelines require employers to provide a safe working condition, there is a risk that such a question, or any follow-up questions that relate to employee health, could be interpreted as a prohibited disability inquiry under ADA.
Can businesses ask their customers or clients about their personal vaccination status?
Neither state nor federal law restrict private businesses from asking for or requiring proof of vaccination to enter a store, office or other physical location of a business. Despite social media “memes” and misinformation recently circulating suggesting the opposite, inquiring about a customer’s vaccination status is not a HIPAA violation or a violation of constitutional rights.
Can employers require masks of employees while working onsite?
Generally, and subject again to worker disability law protections, employers have the legal right to require mask wearing onsite. There may be instances where a worker could refuse to wear a mask, such as if it negatively impacts job performance or safety, or he or she has a disability preventing mask use or a sincerely held religious belief. Employees who have a disability that interferes with their ability to wear a face mask may request a “reasonable accommodation” under ADA. Ford Motor Company recently announced that employees must start wearing masks again at plants in Missouri and Florida.
As cases continue to surge, more jurisdictions may begin mandating that employees wear masks. On July 27, the U.S. Centers for Disease Control and Prevention (“CDC”) issued guidance encouraging vaccinated individuals to begin wearing masks indoors in locations where COVID-19 transmission is “substantial” or “high.” The CDC’s announcement is expressly not a mandate, but intended to serve as guidance. Governor Whitmer indicated shortly after the CDC’s recommendation came out that Michigan would not be implementing a mask mandate at this time.
If you have any questions or concerns about your business’ COVID-19-related policies and procedures, please contact Dave Houston or your Fraser Trebilcock attorney.
This alert serves as a general summary, and does not constitute legal guidance. All statements made in this article should be verified by counsel retained specifically for that purpose. Please contact us with any specific questions.
Fraser Trebilcock Shareholder Dave Houston has over 40 years of experience representing employers in planning, counseling, and litigating virtually all employment claims and disputes including labor relations (NLRB and MERC), wage and overtime, and employment discrimination, and negotiation of union contracts. He has authored numerous publications regarding employment issues. You can reach him at 517.377.0855 or firstname.lastname@example.org.