As the State of Illinois advances into Phase 5 of its “Restore Illinois” plan, all sectors of the economy have reopened, and employees are returning to the physical workplace. The transition to a “new normal” presents a variety of legal considerations for employers considering the ever-changing governmental COVID-19 policy and guidance. In part one of our three-part series on the return to work after the COVID-19 pandemic, we address some common questions we received from clients on what employers can, and cannot do, when bringing their employees back to work in person.
A. Can employers mandate employees to return to the office?
Yes, under Phase 5 of the “Restore Illinois” plan, employers can mandate a physical return to the office, as all sectors of the economy have fully reopened. However, employers should be cognizant of requests for a reasonable accommodation under the ADA. For example, if an employee has a documented medical reason to not return to physically return to the office due to COVID-19, a reasonable accommodation may be required.
B. Can an employer terminate an employee for refusing to return to work?
Yes, but it is highly fact and jurisdictionally dependent. Employers must consider all the circumstances surrounding a refusal to physically return to work before terminating the employee, including whether the individual has an underlying medical condition.
C. Can employers require employees to be vaccinated prior to returning to work?
In most states, yes, which includes Illinois. A recent lawsuit brought against the Houston Methodist Hospital System (Jennifer Bridges, et al. v. Houston Methodist Hospital, et al.) by more than 100 non-vaccinated employees, challenged a mandatory COVID-19 vaccination policy. The suit arose after said employees were suspended without pay for not having the vaccination. The case was dismissed by a federal judge, citing public policy safety concerns as of paramount importance. An appeal is allegedly pending. It remains to be seen whether the same standard would be applied to employees that work in a non-hospital setting. Furthermore, the EEOC on May 28, 2021, issued additional guidance. In their release, the EEOC stated that federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA.
D. Can employers ask an employee whether they received the COVID-19 vaccine?
Yes. Nothing prevents an employer from inquiring into the vaccination status of its employees. Per the Occupational Safety and Health Act of 1970 (OSHA), employers have a duty of care to provide a safe workplace for employees. In order to protect the health and safety of employees during the COVID-19 pandemic, this duty could include inquiring into the vaccination status of employees. If an employee is unable or refuses to provide vaccination status, the employer can enforce safety policies to include social distancing and requiring a mask. In making this inquiry, employers should be mindful of HIPAA and the ADA requirement to maintain confidentiality of employees’ medical information. This would include proof of COVID-19 vaccination, such as medical records or the “vaccination card.”
Of note, the EEOC in its guidance issued on May 28, 2021, advised that, “the ADA requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination. This ADA confidentiality requirement applies regardless of where the employee gets the vaccination. Although the EEO laws themselves do not prevent employers from requiring employees to bring in documentation or other confirmation of vaccination, this information, like all medical information, must be kept confidential and stored separately from the employee’s personnel files under the ADA.”
E. What are legitimate medical or religious reasons for not receiving the COVID-19 vaccine?
Per the EEOC guidance from May, 28, 2021, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business. There are certain medical conditions that may prevent individuals from receiving the COVID-19 vaccine. Doctors note that individuals with various medical conditions should consult with their care provider prior to receiving the vaccine. Specifically, pregnant women and individuals prone to severe allergic reactions are common examples that may constitute a medical reason for a lack of receiving the COVID-19 vaccine. Moreover, some believe it is against their religion to receive any vaccines. Ultimately, individual justifications for not receiving the vaccine should be considered on a case-by-case basis.
F. Can employers require masks and/or social distance in the workplace?
Yes, per OSHA guidelines employers have a duty of care to comply with health standards and should take steps to protect at-risk persons in the workplace, which may include continuing to wear a mask and social distance. However, the same precautions do not need to be taken with fully vaccinated employees.
Be on the lookout for part two of our return-to-work series, where we will address the COVID-19 vaccine specifically. If you have any questions about the impact of COVID-19 on your business and the appropriate considerations to make as businesses physically reopen, please contact firstname.lastname@example.org, or any one of our attorneys at Wiedner and McAuliffe by email or phone at 312-855-1105.
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