Insight

Covid-19 Vaccines and Masks in the Workplace—What You Need to Know

What you need to know about mandates for vaccines and masks in the workplace.

COVID-19 Vaccines in the Workplace
Greg Mansell

Greg Mansell

July 29, 2021 09:00 AM

This article was originally published on June 2, 2021.

The Equal Employment Opportunity Commission (EEOC), the body responsible for enforcing federal laws that prohibit job discrimination and harassments, has issued guidance regarding workplace policies created in response to the COVID-19 Pandemic. Many employers have adapted specific policies to facilitate the safe return of employees to the workplace. Below you will find a summary of the most recent EEOC guidance regarding the legality of mandatory vaccination or mask wearing policies for employees.

May My Employer Require Me to Be Vaccinated Before Returning To Work?

Yes. The EEOC has provided guidance indicating that employers can require their employees to receive the COVID-19 vaccine before returning to work in-person.1 However, employers must still comply with Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA) and the Ohio Civil Rights Act which may exempt employees from employer vaccination mandates if they have a sincerely held religious belief or a disability that would prohibit vaccination.2

Under the ADA, an employee with an ADA disability that prevents him or her from taking the COVID-19 vaccine may be entitled to a reasonable accommodation that exempts him or her from an employer vaccination policy if that accommodation would not cause “undue hardship” on the employer. In the ADA context, undue hardship is a “significant difficulty or expense.” If you believe you have a disability that prevents you from getting the COVID-19 vaccine your employer is allowed to request proof of your disability through a doctor’s note or other form of medical documentation.

Similarly, under Title VII, an employee may be exempt from an employer vaccination mandate if that employee holds a sincere religious belief, practice, or observance that prohibits COVID-19 vaccination. The employer must provide the employee with a reasonable accommodation unless that accommodation would impose “undue hardship” on the employer. Under Title VII, undue hardship is defined as “more than [a] de minimis cost” to the employer. This is a lower standard than undue hardship under the ADA.

Possible employer accommodations include continuing remote working arrangements or providing masks, gloves and other personal protective equipment to employees.

The EEOC states that if the employer cannot reasonably accommodate an employee who is unable to be vaccinated the employer may “exclude” the worker from the workplace. However, this does not mean necessarily mean that your employer may automatically terminate you. If you believe your employer has terminated you because of your inability to receive the COVID-19 vaccine, give us a call today for a free consultation.

May My Employer Require Me to Wear a Mask at Work?

Yes. Private employers are given a wide latitude in implementing work-place policies to protect the health and safety of all employees, including mandating mask-wearing in the office. However, if you have a sincerely held religious belief or medical condition that prevents you from wearing a mask, your employer may be required under Title VII or the ADA to provide you with an accommodation.

May I Be Required to Wear A Mask Even if I am Already Vaccinated?

Yes. Although the CDC has recently issued guidance indicating that in certain situations vaccinated individuals no longer need to wear masks or socially distance, employees still need to follow their employer’s mask guidelines while in the workplace.3

Does Asking Me About My Vaccination Status or Requiring Vaccination Violate Health Privacy Laws?

No. The EEOC has indicated that asking an employee about their vaccine status does not violate the ADA, because “there are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Simply requesting proof of receipt of a COVID-19.” However, an employer inquiry as to why you were not vaccinated may elicit information about a disability and would therefore be subject to the ADA standard that such questioning be “job-related and consistent with business necessity.”4

Requiring employees to provide proof that they have received a COVID-19 vaccination does not implicate Title II of GINA because disclosure of an employee’s vaccination status does not involve the use, acquisition, or disclosure of “genetic information” as defined by the statute.

Does Requiring Only Unvaccinated Employees to Wear Masks in the Workplace Violate Health Privacy Laws?

Most likely not. While the EEOC has not directly addressed whether a workplace policy that only requires unvaccinated employees to wear masks in the workplace would violate laws regarding disclosure of confidential medical information, it would be a stretch to prove that your employer’s policy inadvertently exposes your vaccination status if other vaccinated employees choose to continue to wear masks in the workplace because mask wearing in and of itself does not indicate a person’s vaccination status alone.5 Many vaccinated employees may choose to continue wearing a mask in the workplace even if the employer no longer requires it.

Mansell Law, Employment Attorneys in Columbus, Ohio.

(1) Pandemic Preparedness in the Workplace and the Americans With Disabilities Act -Updated in Response to the COVID-19 Pandemic, U.S. EEOC (Mar. 19, 2020); What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, U.S. EEOC (Dec. 16, 2020).

(2) Id.; Jade L. Robinson, Can Private Employers Require Their Employees to Get Vaccinated for Covid-19?, Ohio State Bar Association (Jan. 14. 2021) https://www.ohiobar.org/public-resources/commonly-asked-law-questions-results/labor–employment/private-employers-covid-19-vaccine/

(3) Interim Public Health Recommendations for Fully Vaccinated People, Centers for Disease Control and Prevention (May 13, 2021) https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html

(4) The EEOC Releases First Guidance on Covid Vaccination for Employer, National Law Review Vol. XI, No. 141 (Dec. 16, 2020) https://www.natlawreview.com/article/eeoc-releases-first-guidance-covid-19-vaccination-employers

(5) Alexis Keenan, Can Employers Legally Require Unvaccinated Workers to Wear Masks? The Answer is likely yes, Yahoo! Finance (May 20, 2021) https://finance.yahoo.com/news/employer-mask-mandates-legal-covid-19-vaccination-121346094.html

Related Articles

Fake Vaccination Card Crackdowns Impact Criminal Law


by Justin Smulison

Those who are making, selling and buying fake COVID-19 vaccine cards are facing federal and state charges.

Fake Vaccine Cards Impact Criminal Law

Can Employers Legally Require Their Employees to Get a COVID-19 Vaccine?


by Candace E. Johnson

With the COVID-19 vaccine more widely available now, many employers are asking if they can require employees to receive the vaccine and what risks are involved in doing so.

Can Employers Legally Require Vaccines?

With Reservations


by Justin Smulison

Is vaccine liability on the menu for restaurant owners in 2021?

Vaccine Liability for Restaurant Owners

Inoculation Disputation


by Justin Smulison

Vaccine uptake has become one of the most contentious issues in American life. Divorced parents who disagree about it are creating a welter of new custody cases in family court—and precedent is scarce.

Divorced Parents Disagree on Child Vaccine

Phoning It In


by Alyson M. St. Pierre, Ashley C. Pack and Crystal S. Wildeman

It’s not easy for employers to weigh requests from employees to work from afar, even in the wake of the pandemic. Considerations include COVID-19, vaccinations, the Americans with Disabilities Act and the nature of the job itself.

Employer Considerations for Teleworking

What Does Workplace Harassment Look Like in 2021?


by Victoria E. Langley

The COVID-19 pandemic reshaped the U.S. workforce. But has it changed harassment on the job?

Workplace Harassment in 2021

ADA Website Compliance: A Better Experience for Law Firms and Clients


by Gregory Sirico

Information technology leader and civil rights lawyers weigh in on the vital need for website accessibility in the digital age, especially for law firms and companies like Best Lawyers.

Pixelated eye with rainbow effect

The Employment Pandemic


by Meredith Caiafa and Sarah Greene

The pandemic has had far-reaching effects on employment law since it officially took hold in 2020, but the litigation and lawmaking surrounding it are mutating faster than the variants. Here’s how lawmakers and businesses can keep up.

Employment Law During COVID-19

Measuring Success by Results


by John Fields

Recognized Best Lawyers®* recipient Joseph F. Brophy on how his Firm determines success.

Measuring Firm Success

"Lawyer of the Year"


Texas "Lawyer of the Year" 2022

Charla Truett

Immigration Law

Dallas/Fort Worth, TX

2022

Hybrid Work: Coping with Compliance Consequences


by Gregory Sirico

Communications platforms like Webex by Cisco, Zoom and Microsoft Teams are more popular than ever in the age of hybrid work, but are firms risking compliance for convenience?

Compliances Issues with Hybrid Work

Changes and Challenges


by Megan Norris

As the pandemic ebbs and many people return to the office, midsize law firms in particular must navigate a host of unprecedented questions about costs, culture and client expectations.

Changes, Challenges and Cost of the Pandemic

Forging Bonds, Building Business


by Crystal L. Howard and Lizl Leonardo

As disorienting and occasionally frightening as the pandemic has been, it has also forced lawyers to find innovative new ways to stay connected and do business.

Pandemic Sparks Innovative Ways of Conducting

Staunch Competition


by Andrea E. Nieto, Catherine H. Molloy and Jennifer W. Corinis

On the other side of the pandemic, after record numbers of employee resignation, protecting trade secrets is both challenging and being challenged.

Protecting Trade Secrets During Period of Res

Employment Entanglements


by Justin Smulison

As the United States approaches its third summer against the backdrop of the coronavirus, employers and employees still find themselves in a Gordian Knot of interconnected labor and employment challenges, with no clear way to untangle them all.

Post-Pandemic Employment Challenges Persist

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Trending Articles

The Best Lawyers in Spain™ 2023


by Best Lawyers

Announcing Spain's recognized lawyers for 2023.

Flag of Spain

Announcing the 2023 The Best Lawyers in America Honorees


by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

The Best Lawyers in Chile™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms in Chile.

White star in blue box beside white box with red box on bottom

Thirteen Years of Excellence


by Best Lawyers

For the 13th consecutive year, “Best Law Firms” has awarded the most elite and talented law firms across the country through a thorough and trusted data review process.

Red, white and blue pipes and writing on black background

The 2023 Best Lawyers in Portugal™


by Best Lawyers

Announcing the elite group of lawyers recognized in Portugal for 2023.

Green and red Portuguese flag

The Best Lawyers in South Africa™ 2023


by Best Lawyers

Best Lawyers proudly announces lawyers recognized in South Africa for 2023.

South African flag

Best Lawyers: Ones to Watch in America for 2023


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

Announcing The Best Lawyers in Peru™ 2023


by Best Lawyers

Honoring our awarded lawyers for 2023 in Peru.

Red and white stripes with green leaf symbol

The Best Lawyers in Spain™ 2022


by Best Lawyers

The results include an elite field of top lawyers and firms.

The Best Lawyers in Spain™ 2022

Famous Songs Unprotected by Copyright Could Mean Royalties for Some


by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?

IN PARTNERSHIP

Rewriting 𝙃𝙀𝙍𝙨𝙩𝙤𝙧𝙮 One Verdict at a Time


by Justin Smulison

Athea Trial Lawyers was formed only a year ago by several prestigious lawyers seeking justice for their clients, and together they are making history.

Six female lawyers sitting in office

Announcing the 2022 Best Lawyers® in the United States


by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

Strength in Numbers: When Partnering Up May Be Best in Whistleblower Litigation


by Justin Smulison

Whistleblower claims make headlines when they result in multimillion-dollar settlements. But the journey to the courtroom is characterized by complexity and requires time and resources. Bienert Katzman Littrell Williams partner and The Best Lawyers in America awardee Michael R. Williams discusses when and why partnerships between counsel will strengthen whistleblower litigation.

A Blue Person in the Middle of White People

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Announcing the 2023 The Best Lawyers in Canada Honorees


by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots

Announcing the 2022 "Best Law Firms" Rankings


by Best Lawyers

The 2022 “Best Law Firms” publication includes all “Law Firm of the Year” recipients, national and metro Tier 1 ranked firms and editorial from thought leaders in the legal industry.

The 2022 Best Law Firms Awards