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Should Employers Consider Sewage Data when Making Return-to-the-Workplace Plans?

Should Employers Consider Sewage Data when Making Return-to-the-Workplace Plans? Background Image

While many service, retail and factory workers returned to work several months ago, many employers with white-collar workers have been less inclined to mandate that employees return to the office. A good number of these employers, however, have tentatively informed employees that they may be expected to return to the workplace (at least some days of the week) sometime after Labor Day. Additionally, while most employers have encouraged employees to get vaccinated before returning to the workplace, the majority have not mandated that employees be vaccinated before they come back.

Recent news has caused some employers to reconsider their return to the workplace plans, as well as their decisions not to mandate the vaccine. Last week, for example, the Houston Chronicle reported that there is now more COVID-19 in Houston’s wastewater system than at any other time in the pandemic. Dr. David Perse, the city’s health authority says, “The wastewater predicts what we’ll see in the positivity (rate) by two weeks, which predicts what we’ll see in hospitalization by about two weeks.” Reports of breakthrough infections (i.e., vaccinated people who test positive for the virus) have also caused some human resources managers to rethink their plans for employees to return to the workplace. In light of these events, we revisit some of the questions that we have discussed in previous posts:

Can we still require employees to come back to work after Labor Day? Generally, employers can dictate where an employee works. Employees don’t have a presumed right to work remotely. At the same time, the Occupational Safety and Health Administration (“OSHA”) requires employers to furnish a workplace that is “free from recognized hazards that are causing or likely to cause death or serious physical harm to its employees.” Therefore, any employer that requires employees to come into the workplace should ensure that it has adopted protocols that will minimize the risks to employees. Employers may also need to accommodate certain employees who might have a disability which would make them especially vulnerable if they returned to the office, such as an immunosuppressed employee who has been advised by a doctor not to be vaccinated. Also, note that for those employers who must complete OSHA 300 injury logs, OSHA has begun issuing citations in instances where employees test positive for COVID-19 and it believes that the virus was contracted at the workplace, but the employer did not record that fact. This may be very difficult for OSHA to prove, but nonetheless OSHA is concentrating on this issue.

Can we ask employees if they have been vaccinated? Yes. However, employers should be careful about eliciting additional information about an employee’s medical history when asking the question. Employers should also keep this information confidential.

Can we require employees to be vaccinated? So long as an employer is willing to make exceptions for employees with medical or legitimate religious reasons for not being vaccinated, a mandatory vaccine policy is likely to survive a legal challenge. Bear in mind, however, that if your employees are represented by a union, you may need to bargain with the union before implementing such a requirement. The employer should also anticipate that those who oppose vaccinations may publish negative statements about the employer’s mandatory vaccination decision.

Can we require employees to wear masks? Private employers can still require employees to wear face masks, even if those employees have been vaccinated. Private employers can also have a mask wearing requirement that only applies to unvaccinated employees.

Should we require vaccinated employees to wear masks? The first thing that employers should consider is whether there are any state or local requirements for mask wearing. If there are, employers should comply with them. Assuming there are no state or local requirements, the question is more difficult. Earlier this summer, the CDC issued guidance that vaccinated employees did not have to wear face masks, even when they were inside. Based on this advice, many employers relaxed their mask mandates, at least with respect to vaccinated employees. More recently, however, the CDC has revised its guidance and stated that vaccinated people should wear a mask indoors in public if they are in an area of substantial or high transmission. While this is not a legal mandate for employers, OSHA has previously cited the CDC standards in its guidance (although it has not yet commented on this most recent guidance). However, employers in areas of substantial or high transmission may want to consider requiring all employees to be masked, at least when they are in public areas or unable to distance from their coworkers.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.