As the pandemic has stretched on, the highly infectious Delta COVID variant has become the dominant strain. As infection rates increase, employers are looking for ways to keep their employees safe and allow them to return physically to the workplace. There are several considerations employers must make. Should they require employees and contractors to get the COVID-19 vaccine if they are physically on-site? What requirements are being placed on employers by Washington State? How can new policies be implemented?

Legality of COVID-19 Vaccine Requirements for Employees

As the COVID-19 vaccine has become readily available and the Food & Drug Administration (FDA) has officially approved Pfizer’s COVID-19 vaccine, some employers are wondering if they should require all employees who come into the office to be fully vaccinated. This has brought up the question of if a requirement to get the COVID-19 vaccination is even legal.

Federal anti-discrimination laws do not prevent employers from requiring all their employees who physically enter the workplace to be vaccinated for COVID-19. However, any vaccination requirements are subject to the reasonable accommodation provisions of Title VII (The Civil Rights Act) and the Americans with Disabilities Act (ADA). Title VII and the ADA require an employer to provide reasonable accommodations for employees who do not get vaccinated for COVID-19 because of a disability or a sincerely held religious belief, practice, or observance, unless providing an accommodation would pose an undue hardship on the employer’s ability to operate its business. What accommodations are reasonable and what would be considered an undue hardship on the employer is case-specific and the analysis is different depending on whether the accommodation is for a disability or sincerely held religious belief.

Employers should also be mindful of how a vaccination requirement might affect different employees. Some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination and therefore be negatively impacted by a vaccination requirement. Employers need to be prepared to respond to allegations that any requirement has a disparate impact on, or disproportionately excludes, employees based upon their race, color, religion, sex, national origin, or age. It is unlawful to apply a vaccination requirement to employees in a way that treats them differently based upon their status as part of a protected class unless there is a legitimate non-discriminatory reason for the requirement.

Employers can avoid issues with any vaccine requirement by engaging legal counsel early to help craft their vaccination policy and the process for employees to obtain any reasonable accommodations.

Verification of Vaccination Status

Your business has decided to implement a policy requiring vaccinations for employees. How should you go about verifying vaccination status? A good guide is Washington Labor & Industries verification requirements related to mask requirements. L&I provides four examples of acceptable types of verification: 1) vaccine card or photo of a vaccine card, 2) documentation from a health care provider, 3) state immunization information system record, or 4) a hard copy or electronically signed self-attestation from the employee.

When keeping verification records, you will also want to make sure that this information remains confidential. The ADA requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of the COVID-19 vaccination. Any medical information on an employee must also be stored separately from the employee’s personnel files to limit who has access to such confidential information.

Contractor Vaccination Requirements

Some businesses may want to go a step further and require their contractors who physically work on-site to be vaccinated. If your business is the one implementing this requirement, you will want to make sure that a change in safety requirements while on-site is allowable under any contracts with the contractors. Businesses should also make sure to provide a written version of the new policy to all contractors.

New Labor & Industries Requirements

Businesses also should be aware of current state requirements that apply to them. Washington Labor and Industries updated their COVID requirements for employers effective August 23, 2021. All employers must adhere to the following, regardless of if the space is public or non-public:

• Keep Possibly Infected Employees Home – If any employee has a possible or confirmed case of COVID-19, employers must keep them from working around others and follow appropriate isolation or quarantine guidance.
• Handwashing – Provide handwashing facilities and supplies.
• Training – Train employees to recognize and respond to workplace hazards, including COVID-19.
• Additional Steps – Take additional steps as necessary to protect all your business’s employees.
• Notifying Employees of Exposure – You must notify employees in writing within 1 business day if they had close contact with someone who had a positive COVID-19 test (without disclosing the person’s identity).
• Reporting Outbreaks – Businesses must report any COVID-19 outbreaks of 10 or more employees at workplaces or worksites with more than 50 employees to Labor and Industries within 24 hours.

If part of your business is accessible to the public, the following requirements apply:

• Masks in Indoor Public Spaces for Employees AND Customers – In indoor public spaces accessible to the public, businesses must require face coverings or masks for all customers and employees.
• Signage – Inform your customers of face-covering requirements in a prominent location at each entry in a manner visible to customers.
• Providing Masks to Employees – Provide cloth face coverings or more protective masks to employees, free of charge, when use of a mask is required.

For non-public spaces, the following requirements apply:

• Vaccinated Employees – Fully vaccinated employees, whose status has been verified by the employer, are allowed to remove their face covering or mask while indoors in areas that are not accessible to the public. Employers must keep track of the verifications and be able to show the process used to verify vaccination status. Employers do not have to make the self-attestation an option to verify vaccination status.
• Employees Working Alone – If a person is working alone, they may remove their face covering regardless of their vaccination status. The person must be isolated from interactions with others and have little or no expectations of in-person interruptions. For example, the sole occupant of an office with a closed door who is unlikely to have visitors is allowed to remove their mask while in their office with the door closed.
• Choosing to Require Face Coverings – Employers are allowed to require face coverings for all employees even if the space is not accessible to the public and the employees are fully vaccinated.

What To do to prepare your business for WA COVID-19 Vaccine requirements or policy implementation

Employers who want to implement a COVID-19 vaccine requirement and make sure that company policies are compliant with current Washington State requirements should act now to update their internal documentation, inform employees, and ensure general compliance with the new requirements. At Equinox, our corporate counsel can help you update your COVID-19 policies and internal processes. Contact us today at 425-250-0205 or contact@equinoxbusinesslaw.com to get started.

Legal Disclaimer: This article contains general information. Do not view this article as legal advice. Talk with counsel familiar with your unique business needs before taking or refraining from any action.