The information on this page is not intended to be legal advice. Please consult with your employment law counsel about the specifics of your business when setting employment policies.
On May 21, Gov. Jay Inslee’s office updated its guidance on masks and vaccines in response to new recommendations from the Center for Disease Control (CDC). The Department of Labor & Industries (L&I) soon followed with specific workplace requirements. In a recent webinar for the Washington Hospitality Association, attorney Catharine Morisset, hospitality employment law expert and partner at Fisher Phillips, reviewed the requirements and the options now available to Washington hospitality businesses under the latest rules and recommendations. This article draws on her presentation, which you can view in full here.
As Washington moves toward fully reopening, it is important for employers to continue to follow CDC guidance, L&I requirements, Department of Health rules, and the guidance from the governor’s office on coronavirus safety protocols. This will protect your staff and your guests, and also help protect your company. Following recommended safety protocols will help preserve your workers’ compensation coverage should an employee claim to have gotten sick at work.
Current masks and vaccination policies and recommendations are outlined in the following documents:
- Governor’s Office: Updated COVID-19 Facial Covering Guidance for Employers and Businesses (5-20-21)
- L&I: Mask and Distancing Requirements Are Changing (5-21-21)
- DOH: COVID-19 Vaccinations FAQ for Employers
- CDC: When you’ve been fully vaccinated (5-16-21)
WORKPLACE MASK REQUIREMENTS STILL IN PLACE
Workers in Washington state are still required to wear masks in the workplace. However, under the updated guidelines, employers now have the option of allowing vaccinated employees to forgo masks. If an employer chooses this option, L&I requires it to verify employees’ vaccination status before allowing them to work without a mask.
Acceptable forms of vaccination status documentation are:
- CDC vaccination card or a photo of the card
- Documentation from a health care provider
- Signed attestation from the worker
- Documentation from the state immunization information system
While employers have the right to ask about an employee’s vaccination status, they should not ask follow up questions about medical conditions that may prevent someone from getting a vaccine unless the employer has adopted a mandatory vaccine policy and the employee requests an accommodation for a disability or bona fide religious belief. An attestation form (find a sample form here) provided to an employee with the L&I mask and vaccine info sheet offers the opportunity to state the company’s policies. A best practice might be to require both an attestation signed by the employee and a supervisor as well as vaccination documentation. Remember, like all health-related information, vaccination status documentation must be kept separate from personnel files under the Americans with Disability Act (ADA).
If vaccinated workers are unmasked, employers must also be ready to provide proof of vaccination status if audited by L&I or the local health department. Vaccine and mask policies apply to owners as well, and L&I also expects to see proof of owners’ status if they are unmasked in the workplace. According to L&I, proof may include:
- A log recording who is vaccinated with date of verification
- Daily checking of vaccination status
- Marks on a badge or credential (Note: employers should consider risk of discrimination, harassment, impact on morale, and other potential issues with this option)
Employees have the right to wear a mask regardless of vaccination status and employers continue to have the right to require all employees to wear masks. Employers must be ready to engage in the interactive process regarding employee requests for accommodations based on a disability or religion.
MANDATORY VS. NON-MANDATORY VACCINATION POLICIES
The only guidance to date from a federal agency about mandatory vaccination policies comes from the Equal Employment Opportunity Commission (EEOC). The EEOC has stated that employers may mandate vaccinations.
If an employer chooses to adopt a mandatory policy, they should articulate in writing the business reason for this policy, identifying what makes vaccination a job-related necessity. The employer should communicate this policy to its employees, preferably in writing.
A mandatory vaccination policy must also allow reasonable accommodations for disabilities and for bona fide religious reasons. Best practice is to have employees fill out a “request for exemption” form to begin the required interactive dialogue. The ADA and similar state law require that employers and employees engage in an interactive process to explore potential reasonable accommodations. Employers must be prepared for possible accommodation requests. As this process is complex and fact intense, employers may need to talk to an attorney on how to handle the request and before refusing to provide an accommodation, particularly if considering a termination.
Fisher Phillips has provided a sample mandatory policy and other useful example policies on its vaccine resource page including:
- Model mandatory vaccine policy
- Model non-mandatory vaccine policy
- Accommodation procedure
- Request for medical exemption/accommodation related to vaccine
- Request for religious exemption/accommodation related to vaccine
Employers should also note the following about mandatory vaccination policies:
- If vaccinations are required, they become a condition of work. The employer must be willing to pay for the time it takes to get vaccinated and must record these hours for overtime purposes.
- Yes, you can ask for medical support or a signed statement of bona fide religious exemption.
- No, you can’t require more than vaccine information unless necessary for the interactive process related to a reasonable accommodation request for a disability.
SAFE WORKER PROCLAMATION
The governor’s May 21 guidance also contains an anti-retaliation provision. It provides an employer cannot fire or take adverse action against an employee for getting the vaccine, for taking time off to get a vaccine, or to recover from being vaccinated. (See proclamation here with a list of possible adverse actions). High-risk worker protections also remain in place. See an FAQ about these protections here.
CASH BONUSES FOR VACCINES?
Voluntary policies can include offers of cash bonuses for vaccinations, but cash bonuses need to be added into weekly pay and may impact the base rate of pay for overtime for the week. A bonus considered as too large of an incentive could create EEOC issues or tax issues, although new EEOC guidance suggests there is more flexibility. Paid time off and prize drawings are other options. However, you might consider including employees in incentives like prize drawings for whom you are providing a reasonable accommodation to avoid a potential discrimination claim. With bonuses and other incentives, there is the risk of perception of an unfair policy that rewards employees but does not similarly reward those who might not be able to get vaccinated because of disabilities.
When should you ask potential employees about vaccination status? If you have a mandatory policy, it is appropriate to ask in an interview about vaccination status. However, even with a mandatory policy it may be better to wait to ask about vaccinations to avoid gaining knowledge about the applicant’s possible medical condition. A better option would be to wait until you have determined if the person is qualified for the job. At that point, you could make a qualified or conditional job offer that includes your company policy on vaccines and asks if accommodation will be needed.
MASK POLICIES FOR GUESTS
In Washington, everyone is still required to wear masks and social distance when in public. However, the updated face covering proclamation issued by the Secretary of Health on May 15 excludes fully vaccinated people from this ongoing requirement.
Private businesses continue to have the right to require all guests to wear masks regardless of vaccination status. Businesses can also choose to allow vaccinated guests to forgo masks. If guests do forgo masks, the operator has the option of 1) assuming an unmasked guest is vaccinated or 2) asking the guest about their vaccination status.
Asking about vaccination status can lead to issues, such as difficult discussions regarding a guest’s disability or political beliefs. The honor system might be easiest if it fits with your business philosophy. An honor system also avoids putting your staff in the difficult position of having to police compliance. If an unmasked guest states they are not vaccinated, the business has the right to refuse service. If a guest refuses to answer when asked about vaccination status, under the current state rules, the guest must be denied entry. If a guest has a medical exemption, you may let them enter or you must offer an accommodation such as curbside pickup or take out.
Visit the association’s toolkit on vaccinations and mask policies for employers here for quick links to resources, model policies and sample forms.
As with any topic related to the pandemic, the law changes rapidly. There is additional indication the governor may be changing some of these guidelines. We also do not know if these rules will change when all counties enter Phase IV reopening, currently planned for the end of June 2021. Be sure to watch for member updates in Washington Hospitality’s weekly newsletter and visit the coronavirus knowledge base at hub.wahospitality.org for developments.