Who Is That Masked Employee and Is She Vaccinated? Employers Wrestle with New CDC GuidelinesDo you trust your employees about their vaccination status, or do you need to see proof? Since the Centers for Disease Control and Prevention’s (CDC) new mask guidance came out last week, many employers have been wrestling with the question of how best to determine the COVID-19 vaccination status of their employees.

The CDC’s guidance stated that – for fully vaccinated people – masks were not required in most indoor settings (with a few exceptions related to public transit, hospitals, and prisons) and not required outdoors. If you were not fully vaccinated, then the CDC advised you still need to wear a mask indoors.

The new guidance begs the question for many employers looking to modify their mask policy: How do you determine whether an employee is fully vaccinated?

Option 1: The Honor System

One option for employers is the honor system. Basically, you would issue a new policy stating that masks are not required for fully vaccinated people, but that the unvaccinated must still wear their masks. You would not get into requiring proof or asking about employee vaccination status but would rely on your employees to be honest about their vaccination status.

Although this method does not provide certainty (or at least as much certainty as you can get) regarding vaccination status, it is easier to implement because it is effective as soon as you change your policy. Furthermore, the honor system does not require employers to get into the sometimes messy business of asking employees directly about or requiring proof of vaccination status.

Option 2: Ask Employees If They Are Fully Vaccinated

Another option is to ask employees about whether they are fully vaccinated. The EEOC’s current guidance (Section K) is that this is not a medical inquiry, and you can ask applicants or employees without running afoul of the Americans with Disabilities Act (ADA) or having to show job-relatedness. If you do ask an employee whether he is fully vaccinated and the employee says no, then you should not ask why — as that would likely be a disability-related inquiry (according to the EEOC).

One of the pros of this option is you will get a better understanding, of course, of who actually has been fully vaccinated. If an employee who has not been fully vaccinated is not wearing a mask, then a supervisor knows to ask the employee to put one on. One of the cons of this policy is that employees may not like being asked this question, and employees, of course, may not respond truthfully. (We are sad to report that people do not always tell the truth).

Option 3: Requiring Actual Proof of Vaccine Status

A third option is for employers to collect proof that employees have received the COVID-19 vaccine by requiring that they show a vaccination card or some other valid evidence. The EEOC says that employers are allowed to do this (in Section K.3). If you require vaccination cards and actually keep a copy of the cards, then you should probably keep that information confidential in a separate medical file.

For employers wanting the most assurance that an employee has been vaccinated, this is likely the best option because, of course, it would provide actual documentation of vaccination status.

Option 4: You Can Mandate the Vaccine, But Be Sure to Make Exceptions

Finally, you can mandate that employees receive the vaccine, at least under federal law (there may be some state and local exceptions, depending on your location). Although some employees in many workplaces just don’t want to receive the vaccine (for various reasons), there may be individuals who cannot receive the vaccine because of a disability. Or, there may be employees who will not receive the vaccine based on sincerely held religious beliefs. If you mandate the vaccine, you must consider reasonable accommodations for these employees.

Takeaways

The new CDC guidance was a giant leap forward in the return to normalcy regarding the pandemic. Employers seeking to modify their masking policy to follow the CDC guidance should keep the above options in mind when trying to determine the question that the CDC guidance begs: How do you actually determine who has been fully vaccinated?

President Biden Proclaims His Administration’s Policy to Encourage Worker Organizing and Collective BargainingPresident Biden issued his executive order on “Worker Organizing and Empowerment” on April 26, 2021. In it, he stated that “it is the policy of my Administration to encourage worker organizing and collective bargaining.” In the EO, President Biden noted that while the National Labor Relations Act states that it is the policy of the United States to encourage organizing and bargaining, the federal government has not used its full authority to promote this policy. Noting the steady decline in union density in the United States, the president stated that the failure to modernize labor relations laws have made worker organization efforts “exceedingly difficult.”

President Biden thus has created a national task force with Vice President Harris as the chair. More than 20 other federal agency representatives will serve on task force. The task force’s charge is to identify policies, practices, and programs to promote worker power, worker organizing, and collective bargaining, especially in the areas of the country with “hostile labor laws” and for “marginalized workers,” including women and persons of color. President Biden would like to see specific efforts directed toward hard-to-organize industries. The task force is charged to make a report to the president in 180 days of the EO.

While this EO seems very preliminary and broad, it no doubt is a sign of things to come. We would not be surprised to see further executive orders, certainly continued change in enforcement policies within the NLRB, and perhaps proposed amendments to the NLRA itself. Recall that the Protecting the Right to Organize (PRO) Act was proposed in 2019, a bill still supported by the president. We will continue to monitor developments and post.

OSHA Stand Down for Stand Up Safe Employers — Good Tips on FallsAs the construction industry continues to recover from the COVID-19 pandemic, it also continues to focus on worker safety. Consistent with this focus, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has scheduled the eighth annual “National Safety Stand-Down to Prevent Falls in Construction” event for May 3-7, 2021. OSHA is encouraging construction employers and other stakeholders to join the event to promote awareness and training on how to better control fall-related hazards. It makes sense to consider a few things that might just make you want to participate.

Participation Isn’t Hard

Initially, it will not take much effort for you to participate in the event. Other than the time it takes to get the word out to worksites and to pull information about your fall prevention program together, there is little preparation necessary. You already have what you need most: your fall prevention program. Helpfully, OSHA has also provided suggestions and additional resources on its website that you can use to prepare for a successful event. OSHA even provides links to resources, posters, handouts, and other potentially useful material.

During the National Stand-Down, you can focus your communication on any of the many types of falls that can happen. These can include falls:

  • From ladders
  • From a roof
  • From a scaffold
  • Down a set of stairs
  • From structural steel
  • Through a floor or roof opening
  • Through a fragile roof surface

Of course, the talk should include more than discussion of the risks associated with these types of falls. It should also include discussion on how these falls can be prevented, i.e., your fall protection program, and any improvements to the program that might be considered.

You can promote the National Stand-Down with as much or as little fanfare as you wish. You can formally participate in the event by signing up on the OSHA website, or you can choose to simply have an independent event for the same “fall prevention” purpose. As long as you are using the time to promote awareness of the risks associated with a fall and training employees on fall prevention, your event is “on the mark.” In fact, something as basic as a short, focused “Toolbox Talk” at each worksite should suffice. One note of potential importance: You should remember that requiring employees to participate in the National Stand-Down (which you should do) likely makes the time compensable, i.e., an employee likely must be paid for the time.

There’s an Upside to Participating

Finally, although there is little, if any, downside to participating in the National Stand-Down or in an employer holding an independent event, you should recognize that there is a potentially huge upside: The additional education/training may help improve the safety of employees on your worksite. Remember, as far as the “hurt factor” goes, the potential risk of injury associated with a fall from a height is very high. When an employee is injured from a fall, the injury can be catastrophic. Tragically, almost 40% of annual recorded construction fatalities happen as the result of a fall. If the National Stand-Down event prevents even one such incident, that would be a great return on a small investment.