Return to Work, Vaccination, and Masking Policies — FAQ

Kara Govro

Kara Govro

Are you reopening your office and wondering what your vaccination and masking polices can be? Our FAQ provides you with answers you need.

Q1: Can we bring all employees back to the office, but make the unvaccinated keep their masks on?
In most places,* yes. However, the CDC currently suggests that even fully vaccinated people should continue to wear masks indoors in areas of high transmission, since vaccinated people are still effective carriers and spreaders of the now-dominant Delta variant. You can check the transmission levels for your area here.

Additionally, some states or localities may have stricter mask requirements, which should be followed. OSHA has also issued an Emergency Temporary Standard for healthcare that creates broader mask mandates for healthcare facilities and workers. If you aren’t subject to any of these requirements, having different rules for vaccinated vs. unvaccinated employees is acceptable, since the different treatment it is not based on a protected class.*

Treating these groups differently is generally not illegal employment discrimination* and employers should not think of it as treating employees more or less favorably, but simply as following current public health guidelines. This distinction should be emphasized when talking to employees about the different rules for those who are vaccinated or unvaccinated.

Keep in mind that some employees will be unvaccinated due to disability, pregnancy, or religious beliefs. Employers should be careful to ensure that these employees are not harassed because of their vaccination status (which will be obvious if they are required to wear a mask when fully vaccinated employees are not). While preventing harassment of any employee who is unvaccinated is a best practice to maintain morale and productivity in the workplace, employees who are unvaccinated for these particular reasons have protections under Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA). 

*Numerous bills have been introduced at the state level to make vaccination status a protected characteristic and it appears that some Governors may create protections via Executive Order (EO). So far only Montana’s law has passed; it prevents employers not only from excluding unvaccinated workers but also from asking them to wear masks if vaccinated employees don’t have to. The current Executive Orders in effect do not appear to impact private employers. Employers should check for state law before making policies that treat vaccinated and unvaccinated workers differently.

Q2: Can we bring back only vaccinated employees?
It depends.Unless state or local law says otherwise*, you could exclude employees from the workplace who are not vaccinated for reasons other than disability, pregnancy, or religious belief, since choosing to forgo vaccination for other reasons is not generally a protected class or characteristic.*

Employers who want to exclude unvaccinated employees will need to make reasonable accommodations for employees who are unvaccinated due to disability, pregnancy, or religious belief. If there is no reasonable accommodation that would allow them to be in the workplace without posing a “direct threat,” they too could be excluded. Whether a direct threat exists, and if it can be mitigated, is extremely fact-specific. The EEOC provides guidance here, in Q&A K.5.

Even if you could exclude an unvaccinated employee, we generally wouldn’t recommend it. In many cases, an alternative approach of requiring unvaccinated employees to continue wearing masks and maintaining social distance will achieve similar results in term of workplace safety. That said, any approach to bringing employees back will require a workplace-specific risk assessment. 

*Numerous bills have been introduced at the state level to make vaccination status a protected characteristic and it appears that some Governors may create protections via Executive Order (EO). So far only Montana’s law has passed; it prevents employers not only from excluding unvaccinated workers but also from asking them to wear masks if vaccinated employees don’t have to. The current Executive Orders in effect do not appear to impact private employers. Employers should check for state law before making policies that treat vaccinated and unvaccinated workers differently.

Q3: Is it illegal discrimination to treat vaccinated and unvaccinated employees differently?
It depends. Different treatment that is reasonably related to workplace safety – such as having non-vaccinated employees continue to wear masks – is generally okay.* Employers should make a concerted effort to only treat vaccinated and unvaccinated employees differently to the extent necessary to ensure the safety of all those in the workplace. Additionally, employers must make reasonable accommodations for employees who are unvaccinated due to disability, pregnancy, or religious belief; treating these employees differently without trying to work with them would be illegal discrimination.

Vaccination incentive programs also must allow for accommodations for employees who can’t get vaccinated due to disability, pregnancy, or religion. For example, if you offer $100 for getting vaccinated, or throw a pizza party for vaccinated employees, an employee with a disability that prevented vaccination would need to be able to earn the $100 or attend the pizza party by doing something else that similarly advances safety in the workplace, like wearing a mask, undergoing regular COVID testing, or taking a course on preventing the spread of viruses. 

While employees who are unvaccinated for reasons other than disability, pregnancy, or religion are not entitled to these kinds of accommodations, it may make sense to provide them anyway, both to encourage the alternative safety-enhancing behaviors, and to reduce the likelihood that they will complain about how they are being treated. There is also the possibility that treating unvaccinated employees differently will have a “disparate impact” on those of a certain race or ethnicity. Disparate impact claims generally arise when an employer is trying to do something in the best interest of the company, but the methods they use ultimately harm a certain protected class. In the case of excluding unvaccinated employees, or offering cash incentives to those who are vaccinated, there could be a disparate impact on employees of color, whose vaccination rates are lagging behind those of white employees. 

Employers should also ensure that unvaccinated employees are not harassed by co-workers, managers, or customers, since disability, pregnancy, and religious beliefs are protected characteristics. Although employers do not have a legal obligation to prevent harassment of employees who are unvaccinated for other reasons, it is in the best interest of the employer to prevent this, as any kind of workplace harassment is going to lead to loss of productivity, morale issues, and quite possibly bad PR. 

*Numerous bills have been introduced at the state level to make vaccination status a protected characteristic and it appears that some Governors may create protections via Executive Order (EO). So far only Montana’s law has passed; it prevents employers not only from excluding unvaccinated workers but also from asking them to wear masks if vaccinated employees don’t have to. The current Executive Orders in effect do not appear to impact private employers. Employers should check for state law before making policies that treat vaccinated and unvaccinated workers differently.

Q6: There are no mask mandates that affect our business. Should we require employees to wear masks anyway?
Providing advice on disease mitigation is outside of our scope of services, so we defer to guidance from the CDC and OSHA. Currently, the CDC recommends that those who are not fully vaccinated continue to wear masks when in public, and that even fully vaccinated people should continue to wear masks indoors in areas of high transmission, since they are still effective carriers and spreaders of the now-dominant Delta variant. You can check the transmission levels for your area here.  

Q7: Should we make everyone keep wearing masks so the unvaccinated don’t feel singled out?
You could. Masks can essentially be treated like uniforms, Given the CDC’s current guidance and the fact that a large portion of the country is experiencing high transmission rates, this would not be an unreasonable request.

Q8: Can we ask for proof of vaccination? Isn’t this a HIPAA violation or an illegal inquiry under the ADA or somehow confidential information?
Employers can ask for proof of vaccination unless there is a state or local law or order to the contrary. * 

When an employer is requesting or reviewing medical information in its capacity as an employer, as it would be when asking about an employee’s vaccination status, it is considered to be an employment record. In such cases, HIPAA would not apply to the employer. The ADA will govern the collection and storage of this information.

The Equal Employment Opportunity Commission (the EEOC), which enforces the ADA, has said that asking about vaccination is not a disability-related inquiry, though it could turn into one if you ask follow up questions about why the employee is not vaccinated. Asking a yes or no question, or requesting to see the employee’s vaccination card, does not violate any federal laws or require proof that the inquiry is job-related.     

Finally, just because employees think that something is or should be private or confidential doesn’t mean that they can’t be required to share it with their employer. Social Security Numbers, birth dates, and home addresses are all pieces of information an employee may not want to advertise, but sharing is necessary and required. Vaccination status is similar. However, all of this information, once gathered, should not be shared by the employer with third parties, except on a need-to-know basis.   

Q9: Should we keep a record of who is vaccinated or makes copies of vaccination cards? If we do, how long do we have to keep it for?
If you’re asking about vaccination status, you’ll want to keep some kind of record (so you don’t have to ask multiple times), but how you do so is up to you, unless state or local law has imposed specific recordkeeping requirements. You may want to keep something simple like an excel spreadsheet with the employee’s name and a simple “yes” or “no” in the vaccination column. If you’d prefer to take a copy of their vaccination card, that should be kept with other employee medical information, separate from their personnel file.

You should plan to keep these records for 30 years as required by OSHA.

Q10: If we keep a record of who is vaccinated, can we share it with managers so they can enforce any policies based on that information, such as masking and social distancing?
Yes, though we recommend not sharing this information any more widely than necessary. While anonymized information is okay to share (e.g., “80% of our employees are vaccinated!”), each employee’s vaccination status should be treated as confidential, even if the fact that they are wearing a mask to work seems to reveal their status publicly. Obviously, managers will need this information if they are expected to enforce vaccination-dependent policies, and employers should train them on how they should be enforcing the policies and how and when to escalate issues to HR or a higher level of management.

Q11: If an employee has had COVID, is that as good as being vaccinated?
While scientists don’t currently have enough data to say definitively whether natural immunity is as good as the vaccine, the CDC only differentiates between those who are fully vaccinated and everyone else. So, if you are following public health guidelines, someone having had COVID in the past is not equal to being fully vaccinated.

Q12: Can we forbid employees from wearing masks, assuming no laws say otherwise?
Theoretically, yes, but this is not a good idea. Since a rule like this is in opposition to current federal guidance in most of the country, it is likely to result in complaints to OSHA, bad publicity, and lawsuits. It would also require accommodations for many employees. Even if masks are not required by any law, we recommend allowing employees to wear them for any reason or no reason at all.