By: John M. Farrell, Board Certified in Labor & Employment Law
The calendar has now officially turned to 2021. While it is easy to simply blame the year 2020 for the various catastrophes, both big and small, that befell our communities, the orbit of the Earth unfortunately did not actually set any temporal boundaries on the effects of the coronavirus. So yes, it is 2021, but we still must grapple with coronavirus employment issues.
For the most part, employers that are already open for business should continue doing what they have been doing. Regular and extraordinary sanitation efforts, mask mandates, social distancing, work from home allowances, and other measures should remain in effect. We also continue to encourage employers to be understanding of legitimate employee coronavirus absences and fears, as well as other challenges for employees (such as being both an employee and a homeschool teacher). Overly (and unnecessarily) strict policies at this juncture can damage morale and decrease productivity. Employers exploring opening in 2021 need to implement return to work policies that effectively protect employees and customers, and comply with federal, state, and local requirements.
However, there are a couple newer updates that have employers wondering what, if anything, to change in their operating policies.
The first more recent change is the update to the CDC’s quarantine guidelines. Whereas the previous guidance recommended a 14-day quarantine upon exposure to coronavirus, there is some new guidance that suggests that this figure could be cut in half. So, should employers be making a change?
Probably not. The CDC’s guidance on the quarantine length is that 14 days is still the gold standard. If a person quarantines for 14 days after exposure without symptoms, the risk of such person spreading the disease is close to zero. Thus, if an employer can keep an employee out of the workplace for 14 days after a potential exposure, there is very minimal risk to other employees upon the exposed employee’s return.
So why is the CDC providing guidance on 7- and 10-day quarantine lengths? Largely in an attempt to promote some compliance. The CDC realized that people were disregarding the 14-day quarantine because they felt it was too long, breaking quarantine early in the period because of such attitude. Therefore, the CDC is attempting to take a more attainable middle position in hopes that people will comply with the full shorter period. To do so, the CDC is balancing the hardship with the risk of spread.
With the 10-day quarantine period, the CDC states that if a person has not been tested but displays no symptoms during a 10-day quarantine, the risk of transmission of the disease falls to an upper limit of 10%.
With the 7-day quarantine period, the CDC states that if a person is tested within 48 hours of the end of a 7-day quarantine and the test comes back negative, the quarantine can end after 7 days
with a transmission risk of between 5%-12%. This one is a little confusing in that the test can take place on day 5 of the quarantine but the quarantine should last for the full seven days regardless of whether the test comes back negative before that point.
With both the 7- and 10-day quarantine lengths, the risk of transmission post-quarantine is smaller, but still present. Therefore, employers looking to fully safeguard their employees should not change their policies. We would recommend sticking to the 14-day quarantine period for all employees that have been exposed to coronavirus whenever possible and consistent with business needs.
On the vaccine front, the good news is that the vaccine is being rolled out along with guidance from the EEOC answering vaccine questions. The most pressing being whether employers can require that employees receive the vaccine before returning to work. For the most part, the answer is yes, employers can implement a mandatory vaccine policy.
There are a couple notable exceptions and some other considerations though. First the exceptions. Employers must provide an exception if the employee has a disability or medical condition that may conflict with receiving the vaccine. Although it is not clear at this time what the scope of such exemptions may be, employers should follow their normal procedures if an employee requests a disability exemption, i.e., enter into the interactive process to obtain more information from the employee’s physician and consider possible reasonable accommodations such as work from home or additional personal protective equipment designed to eliminate transmission.
The other exception is for employees who have sincerely held religious beliefs that prohibit receiving the vaccine. As with the disability exception, employers should consider reasonable accommodations for such employees.
Other than disability and religious based exceptions, employers can require all employees to receive the vaccine as a condition of continued employment. Generalized fears regarding the vaccine that are not tied to disabilities or religious beliefs (or other types of legitimate objections) are not a sufficient reason to provide an exception.
There are other considerations at play as well though. The main one is availability. Since the vaccine is largely only available to limited subsets of the population at this time, implementing a mandatory vaccine policy now is difficult. As such, employers should likely focus on practical assistance to encourage employees to seek out the vaccine when available. Such assistance could include providing up to date information on whether and when the vaccine is available, nearby vaccination locations, providing paid time off to receive the vaccine, and covering the out-of-pocket cost of the vaccine. Employers should also require that employees who receive the vaccine provide notice so that employers can track who has received the vaccine to date. This will assist in future policy-making decisions.
As always, we expect thornier issues to arise as well. Employees may band together to complain if an employer is not requiring vaccines or, vice versa, to protest mandatory vaccine policies. Employees who receive the vaccine may experience side effects and seek damages through workers’ compensation or other avenues. Individuals may make complaints to OSHA accusing the employer of not taking all appropriate steps to protect the workplace.
We are here to provide guidance and support for these and all other issues that arise in the workplace during 2021. If you would like more information or have a specific situation you would like to discuss, please give us a call.