What to Know About Working in a Post-Vaccine World

Published on June 7, 2021 by Nate Bortz

*UPDATE: On June 10, OSHA issued updated workplace guidance regarding COVID-19. Here’s what it covers:

• New focus on protections for unvaccinated and otherwise at-risk workers
• Encourages COVID-19 vaccination
• Added links to guidance with the most up-to-date content

On June 3rd, COVID-19 infections in the United States reached their lowest level since March 2020. When you pair that great news with increasing vaccination rates and the new, more lenient Centers for Disease Control and Prevention (CDC) guidance, much of the nation is finally feeling safe enough to “get back to normal.”

However, according to the National Association of Home Builders (NAHB), the new guidelines are exciting, but “the abrupt nature of the [CDC] release created a lot of questions,” like:

• Can my employer ask if I’ve been vaccinated?
• Can my employer make me get vaccinated?
• What do these new regulations mean for contractors?

To keep yourself and others safe this summer, we’ve compiled some information that will (hopefully) answer your questions about safely returning to work.

New Guideline Overview

Before we run through some responses to the questions posed above, here’s a basic overview of the new CDC guidelines for both vaccinated and non-vaccinated people.

In May, the CDC surprised many by issuing new guidelines stating that fully-vaccinated people no longer need to wear masks or physically distance in any setting, “except where required by federal, state, or local regulations, including local business and workplace guidance.”

As states and local governments figure out how to adapt these new guidelines to their own, here are some things to keep in mind while you’re on the jobsite. 

Can My Employer Ask If I’ve Been Vaccinated?

When you’re working, can an employer ask if you’ve been vaccinated or make you show proof of vaccination? The short answer is, yes, but you’re not required to give details after answering. 

As of now, the federal government and all 50 states are not requiring proof of vaccination for most activities. But the rules are different for your employer.

“Employers generally have wide scope” to make rules for the workplace, said Dorit Reiss, a law professor who specializes in vaccine policies at the University of California Hastings College of the Law. “It’s their business.”

And while you might have heard a lot about HIPAA, or the Health Insurance Portability and Accountability Act of 1996, during the pandemic’s mask mandates, it is not a HIPPA violation for your employer to ask to see your proof of vaccination. 

HIPAA only applies to healthcare entities, according to NBC News, making businesses not in the healthcare industry not bound by HIPAA. That means it’s not a HIPAA violation for most places, including restaurants, retail stores, and employers, to ask for proof that you’ve been vaccinated. However, it does not mean you have to provide that information because of the Americans With Disabilities Act (ADA) and anti-religious discrimination laws.

In a statement to NBC, the US Equal Employment Opportunity Commission (EEOC) said “simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.” 

“However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be ‘job-related and consistent with business necessity.’ ”

Can My Employer Make Me Get Vaccinated?

Similarly to the previous question, there are no federal requirements, but the CDC says “whether an employer may require or mandate COVID-19 vaccination is a matter of state or other applicable law.” So yes, your employer can mandate vaccination*. 

Not only can your employer mandate vaccinations, but according to the EEOC, they can also fire any unvaccinated employee who they deem a direct threat to the health and safety of “the individual or others that cannot be eliminated or reduced by reasonable accommodation.’”

While vaccine mandates are possible, your employer likely won’t enforce one. The administrative burden of tracking compliance and managing exemption requests are making most employers hesitant to mandate vaccination, said Michelle S. Strowhiro, an employment adviser and lawyer at McDermott Will & Emery.

*There are two exceptions to any local laws that allow vaccine mandates, according to the CDC:

• Medical exemptions – Some people may be at risk for an adverse reaction because of an allergy to one of the vaccine components or a medical condition.
• Religious exemptions – Some people may decline vaccination because of a religious belief.

Employers offering vaccination to workers should keep a record of the offer to vaccinate and the employee’s decision to accept or decline vaccination.

 
What Do These New Regulations Mean For Contractors?

According to the NAHB, the new CDC guidelines caught other government agencies off guard. OSHA’s website currently says it’s “reviewing the recent CDC guidance and will update materials on [its] website accordingly.” But the NAHB is excited about a recent development from OSHA in this area.

For a while, OSHA planned on requiring the construction industry to record adverse reactions to COVID-19 vaccines under its 29 CFR 1904 Occupational Injuries and Illnesses recordkeeping requirements. After NAHB and Construction Industry Safety Coalition partners sent a letter and held discussions with key OSHA staff, noting that this requirement might deter vaccinations in the industry, OSHA backed off the requirement and noted that it will not enforce it until May 2022.

Overall, the NAHB says they strongly urge “home builders to encourage their workers and subcontractors to get vaccinated.” But they also recognize the complexities around businesses urging vaccination.

“If an employer incentivizes its employees to get vaccinated – with time off, money or other reward – employees who are not able to receive the vaccine should still be eligible to get the incentive, otherwise it could be seen as unequal treatment and give rise to discrimination claims,” the NAHB said.

The dramatic drop in cases mentioned earlier show that the vaccines are working, and most Americans are eager to see life “return to normal.” 

But, with only 41% of Americans fully vaccinated, there’s still a long way to go. Keep an eye on our blog to learn more about staying safe on the job as OSHA comes out with updated regulations in the near future!

And if you want to make sure your business is ready for any future OSHA inspections, check out our OSHA & Industrial Safety Training company-wide course package!