chevron-down Created with Sketch Beta.

Transparency is key to relaying COVID-19 workplace policies

Sept. 6, 2021

With the FDA’s full approval of the Pfizer-BioNTech vaccine, more employers are expected to mandate COVID-19 vaccines for their workforces but, as with all coronavirus workplace policies, companies must tread carefully to ensure they follow state and federal laws, as well as health guidelines, employment lawyers advise.

“This area is developing constantly,” said Denise Blommel, a labor and employment lawyer in Scottsdale, Arizona, and a former field attorney for the National Labor Relations Board. At the Aug. 24 webinar, “Returning to HQ: Employee Policies and Vaccinations After the Pandemic,” Blommel and Evan Parness, DLA Piper labor and employment attorney, walked through the thicket of sometimes conflicting information on what employers can and cannot do as they seek to keep their employees safe in the workplace. The efforts start with clear communication.

“You need to be transparent with the workers in your firm because if you’re not, you lose all credibility and everybody gets not only unhappy, they get scared,” Blommel said.

Blommel and Parness laid out what’s legal: Employers can require temperature testing, health questionnaires and COVID-19 testing. They can also ask about COVID symptoms and exposure and can generally require employees to be vaccinated, with two important exceptions — medical reasons and religious beliefs. But, as they explained, the devil is in the details. 

When it comes to temperature testing, it must be in a confidential setting. And “do not keep the records,” Blommel said. She also reminded employers to store confidential employee medical records separate from their personnel files.

As for COVID-19 testing, employers should not undertake it themselves, Blommel said. “This is not the do-it-yourself time,” she warned. Use a reputable outside organization. Do not publicly identify which employees tested positive, but employers must disclose to their workforce when someone has been exposed to COVID at work, she said.

Under the Occupational Safety and Health Administration policy, “you have a general duty to provide a workplace free of recognized hazards and certainly COVID-19 is a recognized hazard,” Blommel said.

Regarding employees and customers who complete health questionnaires, Parness advised destroying the original form, keeping only records on whether the individuals “passed or failed” the questionnaire.

On the hot-button issue of mandatory vaccines, Parness noted that private employers may institute mandatory vaccine programs for employees, with employers determining whether there is a reasonable accommodation for employees for whom a bona fide medical reason or “deeply held” religious belief prevents them from getting vaccinated. Accommodations, Parness and Blommel said, could include requiring employees to work from home or modifying their workspace, among other efforts.

While certain states may have outlawed businesses from mandating that patrons be vaccinated, private employers in such states are currently permitted to mandate vaccines for their employees, Parness said. The only exception so far is Montana, which does prohibit private employers from mandating the vaccine for their employees.

And if an employee refuses the mandate without citing a medical or religious belief exception? “That’s insubordination,” Blommel said. She advised, though, to “have a conversation before you just pull the trigger. But if this person refuses to get the vaccine and it’s not under one of the exceptions, it’s goodbye.”

Now that the FDA has given the nod to the Pfizer-BioNTech vaccine, full approval of other vaccines is likely on the horizon, Parness said. But as more employees roll out vaccine mandates for some or all of their workforces, they need to “take into account requests for accommodations.”

The webinar, which is free to ABA members, was sponsored by the Coordinating Group on Practice ForwardABACLELaw Practice Division and the Labor and Employment Law Section. For more resources to help navigate the COVID-19 pandemic, see Practice Forward: The New Normal.

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.