Q&A: COVID-19: Workplace Safety, OSHA Training Updates, and Return to Work Issues

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Jennifer Gimler Brady, Partner at Potter Anderson & Caroon LLP presented the timely and informative webinar COVID-19: Workplace Safety, OSHA Updates, and Return to Work Issues. Jennifer returned to answer many commonly asked questions.

Can employers require employees to get a COVID-19 vaccination?

In general, employers can require employees to get vaccinated.  However, employers will want to make sure that they carefully think through and articulate the business necessity for requiring vaccinations.  Not all businesses are similarly situated, and mandatory vaccine policies may not make sense for all businesses.  In addition, with regard to COVID-19 vaccines, employers should bear in mind that the vaccines have been approved pursuant to an Emergency Use Authorization, rather than full FDA approval, so encouraging vaccination may be a better approach than mandating it.  If an employer chooses to require vaccinations, exemptions should be given to employees who can’t receive vaccinations for medical or religious reasons.

What can an employer do if it has determined that employees should return to the workplace, but an employee refuses, even though the employee isn’t in a high- risk category?

Employers should proceed carefully here.  The first step should be to discuss the employee’s concerns and determine whether there is a legitimate safety issue.  Perhaps the current office set-up doesn’t adequately promote social distancing, or the employer has been lax about enforcing mask wearing.  It’s possible that the employee’s concerns could be addressed by moving the employee to a more remote setting within the office, or some other adjustment.  Ultimately, however, if there is a compelling business reason for the employee to return to the workplace and the employee stands on his/her refusal, it could lead to a separation from employment.

Can an employer offer its employees cash or other incentives to get a COVID-19 vaccination?

Employers can offer employees incentives to get vaccinated.  It is advisable to keep the incentives simple, perhaps a company-branded water bottle or t-shirt, or a modest value gift card.  Employers also could consider allowing employees paid time off to get vaccinated.  More significant incentives could open up concerns about fairness, ethics, and disparate treatment, so caution is warranted.

Can an employer prohibit employees from traveling?

CDC guidance still recommends against travel.  So, employers should be cautious about encouraging or approving business travel, at least for the time being.  Employers can’t control what employees do on their own time, but if employees choose to travel, employers can require employees to provide a negative COVID-19 test prior to returning to the office and can require employees to use paid time off to cover any required quarantine time or travel delays.  It is advisable for employers to have a clear policy on travel so that employees understand the employer’s expectations and requirements.

Photo of Jennifer Gimler BradyJennifer Gimler Brady is a partner and the General Counsel at Potter Anderson & Corroon LLP.  She concentrates her practice in the areas of labor and employment law, health law, and commercial litigation. She counsels employers on labor and employment issues, including workplace investigations, unionization and collective bargaining, employee supervision, discipline and discharge, sexual harassment, and employment discrimination and regularly advises long-term care providers, physician practices and other health care providers on a variety of issues, including licensing and certification, fraud and abuse laws, medical privacy and confidentiality, and litigation matters.

Jennifer is also a member of First Healthcare Compliance’s new Editorial Council.

Be sure to view a recording of this webinar on YouTube and  other webinars, audio recordings, and blogs with Jennifer on our podcast, 1st Talk Compliance and on our website. Take a look at our book: HIPAA Privacy and Security, and our online compliance training courses such as OSHA Training for Healthcare Providers, The Role of Boards in Healthcare Compliance, and Federal Employment Laws Impacting Healthcare Providers.

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