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Tracking evolving COVID workplace standards

In the rapidly evolving arena of COVID workplace rules and guidelines, it’s tough to keep up on the latest standards employers must meet. The rules are cobbled together from various pronouncements from a handful of federal agencies, including the U.S. Occupational Safety & Health Administration, U.S. Equal Employment Opportunity Commission, and U.S. Food and Drug Administration, to mention the most active.

But in essence, here’s what employers need to know right now about ramping up as the pandemic cools down:

Can I require vaccination? Employers are permitted to require that employees be vaccinated against COVID. The rationale is that employers must protect their workers from hazards on the job, and COVID is now among those designated hazards.

Can I seek proof of vaccination? Yes, even if an employer does not require vaccination of all employees, proof of vaccination can be demanded. The feds are careful to draw the line there; it’s still taboo to probe any further into an employee’s health record. But to properly protect the entire workforce (and customers, in the case of restaurants, retail locations, etc.), employers can track their staff by vaccine/no vaccine.

Must I make accommodations? Employers must make reasonable accommodations for those who refuse vaccination, either for medical or religious reasons, as stipulated by the Americans with Disabilities Act and Title VII of the Civil Rights Act. But they can require such employees to provide evidence supporting their need for accommodation.

Can I terminate for refusal to vaccinate? To further protect workers from contracting COVID at work, employers can terminate employees who pose a threat to their coworkers by their refusal to be vaccinated. If no reasonable accommodation can be made for such employees, they can be terminated. In a recent mass resignation/firing in Texas, the Houston Methodist health system lost more than 150 employees after it mandated vaccination. (The health system employs nearly 25,000.) Some resigned, others were fired, and a handful among them caved and got vaccinated.

Are new workplace safety and health standards being set in the wake of the pandemic? No doubt about it. Litigation on many of these issues has already begun, but it may be years before the COVID dust settles. Meantime, employers will want to play it safe – but not so safe that they put themselves at a competitive disadvantage.

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