Like many workplaces around Rochester, Clerio Vision has spent considerable time in the past week trying to figure out what to do about the new guidance on wearing masks from the Centers for Disease Control and Prevention and from Gov. Andrew Cuomo. Each guidance provides significant discretion to employers, in that businesses can take a more conservative approach than what the federal or state guidance requires.
Part of the problem is that not all employees feel the same way about masks and vaccination. And some employees—even fully vaccinated ones—feel particularly uneasy about the liberalization of mask and social distancing rules because they have a pre-existing condition or are afraid of spreading COVID-19 to vulnerable individuals in their personal circles. Balancing the desire of some vaccinated employees to quickly ditch their masks with the personal and public health concerns of other employees is not easy.
There is also some confusion among business owners about whether they can ask employees about their vaccination status (or is that a HIPAA violation?), and what obligations employers may have to safeguard employees that will feel acutely vulnerable among unmasked co-workers.
At our company, we ended up taking somewhat of a half-measure. We are allowing fully vaccinated employees to go without a mask, but we have decided to keep in place the social distancing rules for everyone (irrespective of vaccination status). Hopefully this helps ease our transition toward a near-future state where most employees feel comfortable with no more mask or social distancing mandates.
To help business owners and managers in the Rochester region navigate this complex topic, we spoke with Stephen Jones, a local employment attorney who advises some of the largest companies around Rochester and the nation. His answers to a few questions posed by the Beacon are below.
ROCHESTER BEACON: For those businesses with office workers that want to begin liberalizing their mask-wearing policies, what guidance are you providing on the best practices to implement that new policy?
STEPHEN JONES: First, it should be noted that the regulatory environment is very fluid and rapidly evolving. At the moment, businesses should continue to follow the guidance promulgated by the CDC and state and local health authorities. We are generally advising that employees and customers who are fully vaccinated are no longer required to wear masks. Absent full vaccination, businesses would be taking some risks by otherwise liberalizing their mask-wearing requirements at this time.
ROCHESTER BEACON: For retail and other establishments that rely on in-person customers, what advice are you providing to these types of businesses to comply with the new federal and New York State guidance?
JONES: We are providing the same advice to retail establishments that we are to any other business, namely that there is low risk in permitting fully vaccinated employees and customers to work and patronize without masks.
ROCHESTER BEACON: Business owners seem particularly unsure about whether they can ask for information about vaccination status. Can employers ask employees about their vaccination status?
JONES: Generally, yes. The Equal Employment Opportunity Commission has issued guidance indicating that employers can lawfully ask about vaccination status. However, employers should not ask follow-up questions as to why an employee has not been vaccinated because that could be deemed an unlawful inquiry about potential disabilities under the Americans with Disabilities Act. We would expect most state agencies to follow the EEOC’s guidance on this issue.
ROCHESTER BEACON: And what, if anything, can businesses do to make sure that customers are really fully vaccinated?
JONES: Absent any recently enacted state and local laws prohibiting such inquiries, private business may lawfully request proof of the CDC-authorized paper vaccination card (or, in New York, the Excelsior Pass) before servicing or permitting entry of customers. Several organizations are working on additional apps that would allow the uploading, storing, and viewing of vaccination documents, so called “vaccination passports,” on smartphones.
ROCHESTER BEACON: If some employees in a workplace are uncomfortable with being around co-workers or customers that are not wearing masks, do employers have a legal obligation to find a way to accommodate these types of concerns?
JONES: Employers have a general duty to provide a safe workplace to their employees. However, employers would not have a legal obligation to accommodate simply because an employee feels uncomfortable being around unmasked employees or customers. But if the employee has an underlying disability that continues to present a health risk if exposed to COVID-19 even after vaccination or precludes the employee from being vaccinated, then employers may have a duty to engage in the interactive process under federal and state disability laws to determine if a reasonable accommodation exists.
Alex Zapesochny is Rochester Beacon publisher and CEO of Clerio Vision, a Rochester company working on noninvasive solutions for vision correction.