As franchisees address the many employment issues related to the pandemic, the question now is what to do about vaccines. When considering how best to proceed, franchisees must be familiar with the employment law issues that are implicated. We’ve chosen several to highlight here.
Vaccination Relaxes Quarantine Mandate
Stopping short of eliminating quarantine requirements for people who have been vaccinated for COVID-19, the Centers for Disease Control and Prevention (CDC) substantially relaxed its recommended quarantine requirements for those who have completed the vaccine regimen. The new guidance provides franchisees additional motivation to encourage their workers to get inoculated.
Under the new CDC guidance, an individual with exposure to someone with suspected or confirmed COVID-19 is not required to quarantine if they meet all the following requirements:
- Have been fully vaccinated, meaning it has been at least two weeks since the second dose in a two-dose series or since the receipt of one dose of a single-dose vaccine;
- Are within three months following receipt of the last dose in the series; and
- Have remained asymptomatic since the current COVID-19 exposure.
Employers should follow current post-exposure quarantine guidance for workers who do not meet all three of these criteria after an exposure to someone with suspected or confirmed COVID-19. In most cases, this would require a 14-day quarantine.
The relaxed treatment of workers who have been fully vaccinated only applies during a narrow three-month window after they have received their final dose. Otherwise, workers must follow the CDC quarantine guidance then in effect. This will require you to develop ways to track employee vaccination status.
Can We Ask if Employees Have Been Vaccinated?
The simple answer is yes. To take advantage of the relaxed quarantine requirements, you need to know if and when an employee was vaccinated. But be careful about confidentiality concerns. Although asking an employee whether and when they have been vaccinated is not considered to be a medical examination under the Americans with Disabilities Act, you should avoid asking additional questions, such as why an employee has not been vaccinated. This information could reveal information related to the employee’s medical conditions, pregnancy, or a religious belief. You should always be mindful to protect the confidentiality of the vaccine information you do receive and maintain.
Mandate, Encourage, or Stay Neutral?
Given the uncertainty and potential legal ramifications surrounding the vaccine, most employers have made the decision to encourage, not mandate, employee vaccinations. If your company is considering mandating the vaccine for some or all employees, we recommend that you carefully review the liability, employee morale, and other issues. Keep in mind that the COVID-19 vaccine may not be an option for all your employees. You must account for and provide reasonable accommodations for employees with certain medical conditions or religious beliefs which prevent them from taking the vaccine.
If you choose to encourage vaccinations, carefully consider how to approach your workforce. One approach is to launch information and education campaigns to encourage participation. With vaccine supplies limited, you can provide guidance to your employees on the availability and timing of the vaccination process, how your state or jurisdiction is distributing these vaccinations and resources on options to sign up for vaccines.
Some companies are providing their employees additional support and even incentives to encourage employees to get vaccinations. If you decide to offer monetary, PTO, or other beneficial perks to encourage your workforce to get vaccinated, you should again recognize that there are uncertainties and potential legal ramifications and consult counsel on these policies.
Consider Side Effects
If you are mandating or encouraging your workers to receive the COVID-19 vaccine, be careful not to inadvertently penalize employees who experience side effects as a result of the vaccine. At a minimum, be sure that you are not punishing workers by docking their pay, depleting their PTO bank, or counting side-effect-related absences as part of your disciplinary process.
Some state and local paid sick leave laws may even require providing paid time off, or at least offer protected unpaid leave, to employees as they recover from vaccine side effects.
Try to anticipate these issues when your employees start getting the vaccines. Consider not scheduling employees for the day after receiving the second dose or providing additional paid time off for that day. Employees will obviously be less inclined to get vaccinated if they believe they may have to miss work time or have to use their banked PTO.
Continue COVID Protocols
It is important to continue to practice COVID safety protocols even after your workforce gets vaccinated. Since it is not known at this time how vaccination affects the transmissibility of the virus, you should continue to require employees to wear masks, wash hands frequently and remain physically distant from co-workers and customers.
Consider subscribing to the Fisher Phillips’ alert system to get the most up-to-date information, or visit the website’s Vaccine Resource Center for Employers on our website. You may also contact the authors. •
J. Hagood Tighe (firstname.lastname@example.org, (803) 740-7655) is co-Chair of Fisher Phillips Wage & Hour Practice Group. Andria L. Ryan (email@example.com, (404) 240-4219) is co-Chair of the firm’s Hospitality Practice Group.