WCI, Inc
May 17, 2021

Guidelines for Vaccines and Masks

Suggested Guidelines for Vaccination Policy

  1. Explain WHY your company is implementing this policy. For example, "It is our duty to furnish each of our employees a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm" from OSHA's general duty clause. Also include your concern for your employees, their families, and the community, along with the current recommendations from the CDC and/or local authorities, and leadership's belief that COVID-19 may be prevented or reduced through vaccination.
  2. State WHAT your company policy is. Will vaccination be mandatory or voluntary? For example, "We are implementing a mandatory/voluntary vaccination policy for all employees." For mandatory vaccinations, also indicate how employees may seek an exemption for medical or religious reasons, for accommodation.
  3. Include WHEN the policy goes into effect, along with a time frame for complying. For example, "This policy is effective on (date) and employees have until (date) to obtain their vaccination."
  4. Provide information on HOW employees can comply. For example, "Employees may obtain the vaccination wherever they choose", and/or "We are facilitating vaccinations through (provider info)". Also explain that your company will pay for all vaccinations and the time spent obtaining them, per your policy.
  5. Give employees a way to get answers for any questions or concerns they may have concerning this policy.

Guidelines Concerning Masks in the Workplace

With the easing of mask mandates by the CDC and state governments, we provide the following information for your consideration.

CDC Guidance

For people who have been "fully vaccinated", here are the CDC guidelines as of May 16: guidance for vaccinated people.
For people who have not been vaccinated, existing CDC guidelines from April 19 remain in place: guidance for unvaccinated people.

Concerns About OSHA Citations

OSHA is reviewing the recent CDC guidance and will update their website accordingly. Until those updates are complete, they are referring to the CDC for guidance appropriate to protect fully vaccinated workers.

We have been told by legal counsel that NC-OSHA and SC-OSHA will follow the science (primarily CDC guidance) with respect to the possible issuance of citations, not what governors or local governments do. Science also controls for tort or workers' comp. Plaintiffs still have to prove a connection with the workplace to have any chance of proving liability, which is exceptionally hard.

Businesses still need to follow what the state and local governments require them to do. This is enforceable through state and local police. However, even if the government says "you don't have to wear a mask", it is permissible for a business to require employees and customers to wear masks. The concern here is whether the workforce will comply, and whether this policy would drive away customers.

EEOC Guidance

Some employers are concerned that asking or requiring an employee to show proof of vaccination may violate the ADA. EEOC guidance says "no", because there are many reasons that explain why an employee has not been vaccinated, which may or may not be disability related. Requesting vaccination proof is not likely to elicit information about a disability, and is therefore not a disability-related inquiry. However, follow up questions, such as why they are not vaccinated, may elicit information about a disability and would be subject to the ADA standard that they be "job-related and consistent with business necessity." If an employer requires vaccination proof, they may want to warn the employee not to provide any medical information as part of that proof, to avoid implicating the ADA.

WCI's Advice (see also this article about your options)

  1. Consider the CDC guidance (linked above) when making a decision to allow mask removal
  2. Consider the EEOC guidance (summarized above) if you decide to require proof of vaccination
  3. Call WCI to help you navigate through your particular situation

North Carolina Changes

On May 14, NC Governor Cooper lifted many of the state-mandated COVID-19 restrictions. Here are the NC changes.

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