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Masks making a comeback and vaccine mandates are on

By Mike O’Brien

Masks make a comeback

On July 27, 2021, the CDC issued new guidance for people that have been fully vaccinated against COVID-19. Previously, the CDC had said that fully vaccinated individuals did not need to wear masks in public. However, largely in response to the spread of the Delta variant, the CDC now recommends wearing a mask indoors in public if you are in “an area of substantial or high transmission.” The CDC has provided a “county tracker” tool for determining what areas have “substantial or high transmission.” A large portion of the State of Utah appears to be in the high transmission range. So far, OSHA hasn’t weighed in on the CDC’s updated guidance, but when the CDC has issued mask guidance in the past, OSHA has been fairly quick in following suit. Click here to view the CDC’s guidance. To use the CDC’s county tracker tool, click here.

Vaccine mandates, anyone?

On July 26, 2021, the Department of Veterans Affairs announced that it will require health care workers to get COVID-19 vaccines, becoming the first federal agency to institute such a requirement. Although, it’s the first, it’s almost certainly not going to be the last. It is expected that President Biden will announce that all federal employees and contractors be vaccinated against COVID-19, or be required to submit to regular testing. This comes on the heels of lawyers with the Justice Department determining that federal law doesn’t prohibit public agencies or private businesses from requiring their employees to be vaccinated-even though the vaccines have only been approved on an emergency-use basis. The Federal Government isn’t alone in its position on vaccines. Google recently announced that it’s postponing a return to the office for most workers until mid-October and rolling out a policy that will eventually require everyone to be vaccinated once its sprawling campuses are fully reopened. Click here for more on the VA’s decision; here for more on President Biden’s decision; and here for more on the Justice Department’s determination. Click here for more on Google’s vaccine requirement.

If you mandate, get ready to accommodate

Notwithstanding the apparent increase in appetite for vaccine requirements, employers should be careful in instituting them. In particular, before requiring vaccines, employers need to be able to do two things: (1) explain the legitimate business reason(s) for the decision as well as why/how an unvaccinated employee is a direct threat to self or others, and (2) be ready to reasonably accommodate persons who cannot get vaccinated for religious reasons, health reasons, or pregnancy reasons. Here is an excerpt from the EEOC’s guidance on this point: “Under the ADA, an employer may require all employees to meet a  qualification standard that is job-related and consistent with business necessity, such as a safety-related qualification standard requiring COVID-19 vaccination. However, if a particular employee cannot meet such a safety-related qualification standard because of a disability, the employer may not require compliance for that employee unless it can demonstrate that the individual would pose a ‘direct threat’ to the health or safety of the employee or others in the workplace.” The EEOC has also provided guidance about religious exceptions to vaccine requirements. You can read the full EEOC guidance here: EEOC COVID-19 guidance.









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