The subject of this month’s issue is education. In dealing with the legal issues engendered by the pandemic, I have been struck by the need to keep up with events almost daily. Typically, employment law which is the primary focus of my practice, changes quickly. However, with the pandemic, the guidelines from the CDC, OSHA, and the Commonwealth have been a challenge to keep up with and to reconcile. It is a reminder that our education never ends.
Throughout the pandemic, I have received questions from well-read human resource specialists (meaning that by the time it reached my desk, it was never a simple issue) asking for help parsing through all of this. With the vaccines becoming widely available, the CDC has relaxed workplace guidelines in various ways for those who have been fully vaccinated. The most obvious is masking recommendations, but their guidelines are not a model of clarity. Nor is the reasoning behind them. OSHA seems to be on the way to adopting the recommendations, while Pennsylvania has generally indicated that it will follow those guidelines. (Governor Wolf has stated that once 70% of the population 18 or older have been vaccinated, the masking requirement will be curtailed in most instances even for the unvaccinated). For those vaccinated, there is also a relaxation of rules relating to quarantine if exposed to someone who has an active Covid infection.
All of this leads to more questions. How do you know if an employee has been vaccinated? Do you as an employer want to encourage vaccinations by granting greater freedom to vaccinated employees consistent with the guidelines? Here I do not see a clear answer. First, some employers are not necessarily looking to take “discriminatory” actions. Second, the only way to implement such a system is to ask whether an employee is vaccinated. The current thinking is that under these circumstances, such a question is permissible. However, if an employee declines to answer, can you force them to do so? (Unclear to this writer).
For the very short term, the safest course would be to simply treat them as not vaccinated when it comes to quarantine or any other safety protocols which apply to employees who are not vaccinated. Some commentators have suggested that for now, considering the necessity of providing a safe workplace, having the unvaccinated maintain social distancing, masking, and the like is the safest practice in the near term. (Undoubted that may change should the infection rate continue to decline).
One of the more interesting questions is what to do regarding travel. The CDC has greenlit domestic travel for the vaccinated. As the infection rate declines, is it advisable for employers to have the unvaccinated travel in the continental United States?
Finally, will it become expected that employers mandate vaccination? The trend outside of health care is that employers seem not to be inclined to require as opposed to encouraging vaccination. (The University of Pennsylvania’s health system has just decided to mandate vaccination by its health workers. It is unknown if other health systems in Pennsylvania will follow suit. Other health systems nationally have required vaccination, and challenges are winding their way through the courts).
One would hope that as events continue to unfold that, clearer answers will emerge. Certainly, we will all have to keep reading and learning.