Returning to Work: How The New CDC Guidelines Affect the Workplace
On Thursday, May 13, 2021, the Centers for Disease Control announced new guidance that fully-vaccinated individuals can safely resume pre-pandemic activities without wearing a mask or physical distancing. With this news, governments, businesses, employers, and employees began eyeing a return to normalcy. For many, a large part of this return to life as normal includes a return to in-person work.
In Michigan, Governor Whitmer has unveiled the “MI Vacc to Normal Plan,” which uses vaccination rates for Michiganders 16 years or older as a metric to trigger re-opening. Importantly, this plan notes that two weeks after 55% of residents have received their first dose of the vaccine, in-person work will be allowed in all sectors of businesses. On May 10, 2021, Governor Whitmer announced that this milestone had been reached. Accordingly, the State anticipates that all in-person work may resume on May 24, 2021.
This presents a significant change for many employees. While many front-line workers have been working in-person throughout the pandemic, a January 2021 Gallup poll found that 56% of U.S. workers were “always” or “sometimes” working remotely. With a majority of the American workforce navigating these changes, important questions arise with sometimes complicated answers.
I like working from home. Can my employer require me to return to the office?
Generally, yes. Absent a contract or collective bargaining agreement that states otherwise, an employer has the right to dictate an employee’s job duties, schedule, and work location. Many employees have grown accustomed to remote-work during the pandemic. However, if an employer requires you to return to the workplace, you may be required to do so.
I’m immunocompromised and afraid that COVID-19 continues to pose a serious risk to my health. Can my employer force me to return to the office anyway?
For some, the answer of whether an employer can require in-person work may be more complicated. Specifically, if an employee’s desire to continue remote work is motivated by the need to accommodate a medical disability, he or she may have legal protections that must be considered. The Americans with Disabilities Act (ADA), and the Michigan Persons with Disabilities Civil Rights Act (PWDCRA) prohibits discrimination against a qualified individual on the basis of disability. Both statutes require employers to make reasonable accommodations for disabled employees.
A generalized fear of COVID-19 generally does not suffice to impose liability under the ADA or PWDCRA. However, employees who suffer from medical conditions that make them particularly susceptible to the virus may be protected. In such circumstances, the employer is required to make reasonable accommodations unless such accommodations would impose an undue hardship on the operation of its business. The immunocompromised employee who has been successfully working remotely for the past year may have a good argument that continuing to allow such remote-work constitutes a reasonable accommodation under the ADA and PWDCRA.
Before employing this argument, however, employees should be aware that the most recent cases to be decided by 6th Circuit Court of Appeals – the Circuit with jurisdiction over Federal courts in Michigan – have not sided with employees who requested remote work as an accommodation under the ADA. See: Tchankpa v. Ascena Retail Group, Inc., 951 F.3d 805 (2020), finding, in part: “The ADA is not a weapon that employees can wield to pressure employers into granting unnecessary accommodations or reconfiguring their business operations.”
As you can see, navigating these issues for both employers and workers can be tricky. Businesses or concerned employees would do well to consult with an experienced employment attorney for an assessment on their particular circumstances.
I’m fully-vaccinated. Do I still have to wear a mask?
It depends. While the new CDC guidelines provide that fully vaccinated individuals may safely resume many mask-less activities, those same guidelines also make it clear that you may still be required to wear a mask where required by federal, state, local, tribal, or territorial laws, or rules and regulations, including local business and workplace guidance. Though many lawmaking entities use CDC guidance to establish policy, the CDC itself is not a lawmaking entity. Accordingly, whether or not mask wearing is required depends on the rules and regulations where you live and work.
On May 15, 2021, the Michigan Department of Health and Human Services (MDHHS) revised its Epidemic Orders to reflect CDC guidance. The revision adds “fully vaccinated persons” to the list of individuals who are not required to wear a face mask at indoor gatherings. However, it also requires that establishments must make a “good faith effort” to ensure that all persons at the establishment, including employees, require face masks for non-exempt individuals. MDHHS indicates that such an effort may include positing a sign that notifies people that wearing a mask is required unless a person falls into a specified exemption, asking patrons who are not wearing masks whether they fall into a specified exemption, or requiring face masks of all patrons and employees.
The Michigan Occupational Safety and Health Administration (MIOSHA), the agency responsible for enforcement of safety rules in the workplace, is presently working on revising its COVID-19 protocols to bring them in line with the CDC guidelines pertaining to mask requirements for fully vaccinated people. In the meantime, MIOSHA Workplace Safety Director Sean Egan has stated that “MIOSHA will consider compliance with the MDHHS order as good faith to comply when responding to employee complaints or conducting investigations related to COVID-19.”
However, these regulations only deal with whether a business must require the use of masks indoors for fully vaccinated individuals. Businesses are still free to set their own guidelines requiring the use of masks. Generally speaking, this is the same in the workplace. You employer may still enforce a policy that all employees must continue to wear masks and socially distance in the workplace. Employers should be cautious, however, to apply any such policies in a non-discriminatory fashion.
Can My Employer Require Proof of Vaccination?
Generally, yes. As discussed here previously, the Equal Employment Opportunity Commission (EEOC) has published guidance relating to vaccination requirements in the workplace. The EEOC has made it clear that an employer may require vaccination, and that the vaccine itself is not considered a “medical examination” under the ADA.
The EEOC has also clarified that asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is not a prohibited “disability related inquiry.” Accordingly, an employer will generally not run afoul of the provisions of the ADA by inquiring into vaccination status or requiring proof thereof.
It should be noted that the EEOC has stated that its guidance was prepared prior to the CDC’s update guidance for fully vaccinated individuals, and that it is “considering any impact of these developments on COVID-19 technical assistance provided to date.” Further, employers must still take caution to limit their request for only necessary information and to take precautions to maintain confidentiality of employee health information.