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Privacy & Data Security Law

Employers ‘Learning on the Fly’ as Vaccinated Workers Return

Feb. 22, 2021, 10:16 AM

A decision on whether companies should hand out unique identification badges to Covid-19 vaccinated workers is one of the new challenges employers face as more people return to workplaces.

Employers must contend with a mix guidance from federal safety, health, and employment agencies that likely will change as more is learned about the coronavirus, attorneys and safety consultants said.

“At this point, I think everyone is learning on the fly,” said attorney Jill Kahn Marshall, a partner at Reavis Page Jump in New York City.

There’s an enormous amount of crossover between safety, privacy, and anti-discrimination concerns when employers deal with workplace Covid-19 issues, said Barry Hartstein, co-chair of Littler Mendelson’s equal employment opportunity and diversity practice group.

A safety or personnel director shouldn’t act alone. “One department has to talk to the other,” Hartstein said.

Stay Healthy

One common employer question is which safety protocols need to stay in place for vaccinated workers, said Steve Hawkins, vice president of consulting company FDRsafety LLC in Franklin, Tenn., and former administrator of Tennessee’s worker safety agency.

“We recommend that protections stay in place and that employers require employees who have been vaccinated to continue to follow the protocols that have been put in place,” Hawkins said.

The federal Centers for Disease Control and Prevention and the Occupational Safety and Health Administration have each issued recommendations on policies toward inoculated workers.

OSHA’s Covid-19 guidance says, “Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that Covid-19 vaccines prevent transmission of the virus from person-to-person.”

The CDC, in its guidance, said the only different practice approved for workers who’ve gotten their shots was a change to the quarantine policy. It advised that vaccinated workers exposed to someone with a suspected or confirmed case of Covid-19 didn’t have to quarantine if they meet all three of these criteria:

  • aren’t showing Covid-19 symptoms;
  • it’s been at least two weeks since they completed their two or one-dose series of vaccinations; and
  • the last dose was within the past three months.

The prior CDC policy had required quarantines that could last up to 14 days.

“I think a lot of employers will see this as a welcome change to not having employees constantly rotating out of quarantine,” Marshall said.

The CDC could expand the three-month limit as more is confirmed about how long a vaccination is effective, Hartstein said.

No Badges

Employers with inoculated workers may start looking at whether to differentiate between the duties vaccinated or non-vaccinated workers can perform, Hartstein said. That could lead to violating federal or state medical privacy and employment non-discrimination requirements.

For example, Hartstein said, an employer shouldn’t establish separate teams or shifts of those who received their shots and those who haven’t. And to prevent ad hoc different treatments, supervisors shouldn’t know the vaccination status of workers.

Within workplaces, he added, employers shouldn’t issue unique identification badges based on a worker’s vaccination status. Even handing out temporary stickers, similar to “I voted” labels, at jobsite vaccination drives could run afoul of privacy rules.

Employers don’t seem to be rushing to set up restrictive polices based on that status either, Littler’s January survey of 1,802 clients found.

Just 7% of employers said that once Covid shots are widely available they would only allow vaccinated workers back into a workplace and 6% said they would separate vaccinated and unvaccinated workers.

According to Bloomberg’s vaccination tracker, as of Feb. 18, about 12.6% of U.S. residents had received at least one dose of a vaccine for a total of 59 million shots and about 1.6 million doses given each day.

For most businesses, waves of vaccinated workers arriving for work is months away. States, which each set their own inoculation priorities, generally gave the highest importance to the elderly and health-care workers likely to be in contact with patients with confirmed or suspected cases of Covid-19.

Vaccinations of workers based on industry are still ramping up.

For example, Virginia is allowing “essential workers” in such industries as education, manufacturing, grocery stores, and agriculture to register for vaccinations, but hasn’t expanded the registration program to include workers in construction, food service, transportation, warehousing, banks, and general retail.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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