The below is a high-level summary of recently enacted guidance and law. It is not intended to be legal advice or to cover all areas covered by the law. Please reach out with individual questions.

Businesses may be subject to different or additional laws or rules depending on their industry areas, whether they have collective bargaining agreements in place, the number of employees in the workplace and/or their status as a public entity. For example, under Oregon law, many health care providers are prohibited from requiring a vaccine as a condition of employment, unless vaccines are otherwise required by law. See ORS 433.416.

EEOC guidance - Return to Work and Vaccine Requirements

On December 16, 2020, the EEOC released guidance regarding the ADA, COVID-19, and other discrimination laws. This guidance covers important questions regarding how to safely return employees to the physical workplace and how to implement a mandatory or voluntary employee vaccination requirement without violating federal discrimination laws.

Under the new EEOC guidance,

Employers can:

Require employees to get the COVID-19 vaccine when it is available. A mandatory vaccine requirement must include a meaningful process for individual assessment of religious or disability accommodation requests. Employers should anticipate that a mandatory policy that requires employees to take a vaccine will impact workplace culture and create conflict so communication with employees about why the policy is being put in place, and a process for getting employee feedback is critical. Employers thinking about a mandatory vaccine policy should consult with counsel regarding the parameters of the policy, the legal risks and best practices for who should administer the vaccine. (Note: While EEOC guidance allows for mandatory vaccine requirements, there are other legal risks that organizations must consider and account for, including wage and hour requirements, whistleblowing, and rights and risks linked to the vaccine’s current status as emergency use.)
Require employees who are exhibiting COVID symptoms to leave the physical workplace (remote work may still be an option).
Require employees to have their temperature taken before entering the workplace if there is community spread.
Require a doctor’s note before employees return to the workplace (given the burden on the health care system caused by COVID, employers should think through whether this practice makes sense in their situation).
Require all employees and applicants to take a COVID test or disclose information about a COVID test or symptoms before returning to the workplace or starting their position. For applicants, inquiries should be made after a conditional job offer.
Ask all employees and applicants working in the workplace about whether they have tested positive, exhibited symptoms of COVID (as defined by public health authority guidance), been in contact with a person who has tested positive, or been directed to quarantine or isolate.
Ask employees who are experiencing symptoms at work or who call in sick about their symptoms.
Ask all employees in advance about whether they need to request an accommodation to return to the workplace – even if there is no set date to return to the physical workplace.
Refuse to allow employees or applicants to enter the physical workplace who have not answered the above questions or complied with appropriate protocols. This means that employers may delay the start date of an applicant who has COVID or COVID symptoms. Employers should consider remote work options and engaging with employees/applicants about why they are refusing to respond to these inquiries.
Communicate with employees that discrimination based on a protected class is prohibited – this includes misdirected fear caused by the pandemic – and remind employees to report problematic behavior. EEOC states that it is a best practice to remind employees that discrimination based on a protected class is prohibited. This communication is also a good opportunity to highlight changes to your policy under Oregon’s new Workplace Fairness Act and your business’s equity and inclusion initiatives.

Employers cannot:

Require a COVID antibody test.
Make an individual inquiry regarding a person’s COVID status without reasonable belief and objective information that they have COVID, unless such questions are in line with CDC or public health authority guidance.
Ask employees about the health status of their family members.
Prohibit individuals in high-risk categories (as described in CDC guidance) from entering the physical workplace unless there is information that demonstrates that the person is a direct threat to themselves or others and the risk cannot be reduced or eliminated through an accommodation.
Implement a blanket, mandatory vaccine policy that does not allow individuals to seek accommodations or be assessed on an individual basis.

Confidentiality:

Employers must treat employee health information (temperature checks, responses to symptom inquiries, etc.) as confidential information, only sharing it with others who need the information to do their job. In particular, the individual’s name and/or diagnosis should only be shared with other employees when necessary for the person to perform their duties for the employer. Employee health information must be kept separate from the employee’s personnel file but can be kept with other ADA information for that employee.

Employers with questions should also review the CDC’s frequently asked questions for businesses.