Millions head back to work amid employer confusion over masks, vaccines

By June 2, 2021 No Comments

Millions of people are flooding back to work as the coronavirus ebbs, but businesses say the federal government’s failure to answer pressing questions over masks and vaccinations are complicating their reopening efforts, according to Politico.

Despite President Joe Biden’s goal of getting 70 percent of Americans vaccinated by July 4, and his call for every employer to offer paid time off for workers to recover from the shot, the government has yet to answer whether it’s legal for businesses to offer vaccine incentives to their staff.

While some employers have already offered paid time off, swag or other perks, the Equal Employment Opportunity Commission, the federal agency in charge of policing federal anti-discrimination law, hasn’t clarified whether such incentives could “coerce” employees into getting the shot or disclosing their vaccination status in order to get the benefits.

The uncertainty comes at a crucial time for the economy, as hundreds of thousands of people are heading back to work. Nearly 1.1 million new jobs were created in March and April, according to the latest jobs data released by the Bureau of Labor Statistics on Friday, though the April numbers were far smaller than expected, coming in at a scant 266,000.

Worker safety advocates question the business community’s concerns, countering that worker safety rules will provide clarity and are essential to getting the economy back to normal.

Biden instructed the Occupational Safety and Health Administration to decide whether to issue emergency Covid-19 workplace safety rules by March 15. After weeks of delay, OSHA sent the rules to the Office of Management and Budget for review at the end of April, the first step before they are made public and go into effect. More than 30 stakeholder meetings have been held by OMB and at press time there was no word on the fate of the temporary standard.

Safety advocates and business groups expect that the Covid-19 workplace safety rules currently being finalized by the Biden administration will include a mask mandate for workers.

“The biggest challenge employers are going to face without question is going to be some sort of mask requirement,” said Eric Conn, a management side attorney at the firm Conn Maciel Carey, adding that there’s “tension” between a potential workplace mask mandate and what the CDC has been issuing in guidance related to vaccinated individuals.

A “really big tension that employers are going to face is, even if the rule does allow for some relaxation of mask or distancing requirements based on vaccination status, how do you get reliable information about your employees vaccination status?” Conn added, “that has been a big challenge that employers have faced.”

Inquiring about someone’s vaccination status also raises concerns about employers’ liability under federal discrimination and privacy law, business groups say.

The EEOC said that asking an employee to show proof of a Covid-19 vaccination wouldn’t violate disability law, but cautioned that any follow-up questions “such as asking why an individual did not receive a vaccination, may elicit information about a disability.”

Dozens of organizations including the National Retail Federation and the National Association of Manufacturers sent a letter to the EEOC in February demanding guidance on vaccine incentives. During a public meeting last week, the commission raised several questions about the issue to members of the business and worker advocacy communities, including whether cash vaccine incentives would be more coercive for lower-wage workers.

The commissioners also questioned whether providing swag like T-shirts or “I’m vaccinated” stickers would pressure employees unable to get the vaccine to disclose a disability or medical condition to colleagues.

The agency confirmed in April that it would provide guidance soon; but it has yet to do so.

Some employers are already providing incentives nonetheless.

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