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Vaccination cards, incentives and separate spaces

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Q:      Hi – I am the office manager for a small company right outside of Boston.  Most of our employees are working remotely.  We are looking to ask employees to return to work over the summer. Most have been vaccinated (we think). A few questions:

  • Can we make them show us a copy of their vaccination card?
  • Can we incentivize them? Put everyone’s name in a hat (who gives us a copy) and then pull names for cash prizes?
  • Can we carve out space in one area and ask the unvaccinated people to work there? 

A:      Increasingly, employers are planning for employees to return to the office.  There are many factors to consider, probably most importantly the health of your employees and visitors to your office.

         I consulted Jeffrey A. Dretler, partner at Rubin and Rudman.  Dretler shares definitively that employers can inquire whether an employee is vaccinated.  “The U.S. Equal Employment Opportunity Commission (“EEOC”) has stated that inquiring whether or not an employee is vaccinated and/or asking for proof of vaccination is permitted; however, employers should refrain from asking follow-up questions and inviting voluntary explanations from the employee as doing so may constitute a prohibited disability-related inquiry in violation of the Americans with Disabilities Act (“ADA”) or Title VII.”

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         Some employers are offering financial incentives for employees who are vaccinated.  However, there may be valid reasons why an employee is not getting vaccinated.  Dretler explains that employees may have a medical or religious reason for not getting vaccinated.  These employees are entitled to the same financial benefits as those without such restrictions. Dretler continues to explain an additional factor which employer should think about: offering such incentives may constitute a health-contingent wellness program subject to the nondiscrimination provisions of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). “The EEOC previously issued proposed rules stating that offering ‘de minimus’ financial incentives to employees who have been vaccinated was permissible, but has since withdrawn those rules and announced its intention to issue formal guidance on the subject, but have not said when that guidance will be issued. Until such guidance is issued, employers must tread carefully,” according to Dretler.

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         Dretler raised some concerns about your third question.  “While the U.S. Centers for Disease Control and Prevention (“CDC”) issued revised guidance just last week that vaccinated individuals need not wear masks, even indoors, employers remain obligated to comply with Massachusetts state and local rules which are fast evolving, but still remain unchanged.” Dretler and I discussed an employer’s duty to continue to protect the health and safety of unvaccinated workers in the workplace.  Would it create the appearance that the employer is not taking adequate steps to protect workers even if unvaccinated?  There could be restrictions in an office, as long as it accommodated those with medical and religious exceptions.

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