Tocci & Lee answers these and other employer vaccination questions.

The vaccine rollout is sweeping across Massachusetts. The Centers for Disease Control (CDC) issued new guidance on May 13 relating to reopening of workplaces and open spaces. But substantial gray areas and questions remain. In this Client Alert, Tocci & Lee’s employment law experts answer employer questions.

Can a Massachusetts employer require its employees to become vaccinated?

The simple answer is, yes. Employers can absolutely mandate their employees to be vaccinated. The Equal Employment Opportunity Commission (EEOC) has issued guidance declaring that the COVID-19 pandemic constitutes a “direct threat” to workplace health. Thus, an employer has a “safety-based qualification” to protect against employees posing a direct threat to the health or safety of other individuals in the workplace. The answer comes with exceptions, however. 

Although employers may require employee vaccination, employers must make exceptions for employees who object for health/disability related reasons or genuinely held religious beliefs. Under the Americans with Disabilities Act (ADA), if an employee cannot be vaccinated due to a physical or mental disability, the employee may be entitled to a reasonable accommodation. The same applies to an employee who refuses to be vaccinated due to a sincerely held religious practice or belief. Once an employer is on notice of an employee request for an exemption from a workplace vaccine mandate, the employer must engage in the interactive process with the employee to determine whether a “reasonable accommodation” can be made to allow the employee to perform their essential job functions without “undue hardship” on the employer.

Note that in a crowded workplace an absolute exemption likely will not be deemed to be a reasonable accommodation because an unvaccinated employee may expose others who have not been vaccinated or may spread virus variants (about which much is unknown), thus posing a “direct threat” to other employees. But an employer cannot simply refuse the exemption and terminate the employee. Rather, the employer must engage in the interactive process to determine whether a reasonable accommodation is possible.

Reasonable accommodation in the workplace may include:

• Allowing the employee to work remotely or in an isolated workplace area (if possible);
• If the employee is in a customer facing role, modify duties or physical space to limit public interactions (if possible);
• Modification of work schedule;
• Continued use of PPE and additional safeguards;

Can a Massachusetts employer require an employee to provide proof of vaccination?

Yes. An employer can ask an employee to provide proof of vaccination and in particular, the vaccination card which is completed at the time of vaccination(s) or similar proof of vaccination. The EEOC has advised that the CDC vaccination record card includes only limited medical information and requesting the card will not constitute an unlawful medical inquiry of an employee.

Should an employer requiring vaccinations implement a written policy?

Yes. Most employers (at least Tocci & Lee clients) should have a written COVID-19 vaccination policy. The policy may be modified to mandate vaccination but should clearly address an employee’s right to request a reasonable accommodation due to a disability or a religious belief. Additionally, the policy should have a clear and detailed procedure for requesting accommodations. The policy should also clearly set forth the consequences of refusing to be vaccinated without such good reason, and should provide that an employee who is unable to obtain a vaccination during off hours and must be vaccinated during their regular working hours, will be paid for their time spent being vaccinated.

With the new CDC Guidance, can vaccinated workers be exempted from COVID workplace protocols?

Not Yet. While the CDC recently announced (on May 13) the relaxation of restrictions for vaccinated individuals, Tocci & Lee advises employers to pump the breaks before dramatically altering workplace COVID safety procedures. While the CDC has raised hopes of a “return to normal” in the workplace, we note that neither the Occupational Safety & Health Administration nor the Massachusetts Department of Public Health has issued guidance advising employers to lift restrictions for vaccinated employees. Therefore, Tocci & Lee advises employers to continue to follow COVID-19 safety protocols for all employees, including vaccinated employees. In particular:

• Employers should continue to allow employees to work remotely if effective and efficient;
• Employees should continue to wear masks and engage in social distancing;
• Employees and employers should continue to observe disinfecting protocols and practices.

Are vaccinated employees free to engage in out of state travel?

Yes, however, the CDC still recommends that travelers wear masks and practice social distancing when they travel by bus, plane, train or another mode of public transportation or while they are in transportation hubs, such as airports and bus stations.

Vaccinated employees no are no longer required to follow the isolation protocols for travelers to Massachusetts (quarantining until negative test results are obtained). However, Tocci & Lee advises employers to require traveling employees to travel by car (if possible) to avoid stopping in public places while traveling (gas stations, restaurants) and to abide by the protocols of the state and site they may be visiting for their work.

COVID-19 WORKPLACE GUIDELINES REMAIN FLUID AND CAN BE CONFUSING. TOCCI & LEE WILL CONTINUE TO ISSUE ADVISORIES AS GUIDANCE DEVELOPS. IN THE MEANTIME, PLEASE REACH OUT TO JOHN TOCCI, WHO MANAGES T&L’S EMPLOYMENT PRACTICE GROUP, WITH ANY QUESTIONS OR CONCERNS.

JOHN CAN BE REACHED AT 617-542-6200 X 212 OR VIA EMAIL AT [email protected].