Millions head back to work amid employer confusion over masks, vaccines


Millions of people are flooding back to work as the coronavirus ebbs, but businesses say the federal government’s failure to answer pressing questions over masks and vaccinations are complicating their reopening efforts.

Despite President Joe Biden’s new goal of getting 70 percent of Americans vaccinated by July 4, and his call for every employer to offer paid time off for workers to recover from the shot, the government has yet to answer whether it’s legal for businesses to offer vaccine incentives to their staff.

While some employers have already offered paid time off, swag or other perks, the Equal Employment Opportunity Commission, the federal agency in charge of policing federal anti-discrimination law, hasn’t clarified whether such incentives could “coerce” employees into getting the shot or disclosing their vaccination status in order to get the benefits.

And although the CDC said last month that vaccinated Americans only need to wear a mask when gathering in indoor public places, it’s unclear how that applies to private workplaces like factories and offices.

At the same time, the Labor Department is finalizing long-delayed Covid-19 emergency workplace safety rules that would last through November, which many expect to require workers to wear face masks, among other measures.

“How they handle the vaccine issue, the high number of people getting vaccinated, is one of the central questions around the [emergency temporary standard],” said Marc Freedman, vice president of employment policy at the U.S. Chamber of Commerce.

The uncertainty comes at a crucial time for the economy, as hundreds of thousands of people are heading back to work. Nearly 1 million new jobs were created in March, according to the Bureau of Labor Statistics. The latest jobs report out on Friday is expected to show that job growth accelerated even further in April, as more Americans got vaccinated and warmer weather began across the nation.

Worker safety advocates question the business community’s concerns, countering that worker safety rules will provide clarity and are essential to getting the economy back to normal.

Biden instructed the Occupational Safety and Health Administration to decide whether to issue emergency Covid-19 workplace safety rules by March 15. After weeks of delay, OSHA sent the rules to the Office of Management and Budget for review at the end of April, the first step before they are made public and go into effect.

“I think that industry is going to find every excuse they can to fight against the rule, and to raise that whatever it is that OSHA does is going to be an unbearable burden,” said Debbie Berkowitz, an adviser at OSHA during the Obama administration.

“I find that disingenuous, at best, because I think what’s really needed to get workers back into the economy, and to get the economy open, is that workers know there are requirements that employers have to meet to protect them,” added Berkowitz, now with the left-leaning National Employment Law Project. “And whatever OSHA does is going to be a minimum.”

Safety experts also point out a new report from the CDC this week concluded that if businesses were to slack off on taking workplace safety precautions outside of ensuring workers are vaccinated, it “could lead to substantial increases in severe Covid-19 outcomes, even with improved vaccination coverage.”

But business groups caution that whichever way the Biden administration falls when it comes to the protections employers must provide to their workers could reverberate throughout the economy.

“It could conceivably have a very significant negative impact, depending upon what it expects employers to do, and how much they have to change what they’ve been doing all along, to protect their employees,” Freedman said of the emergency temporary standard being finalized by OSHA, which is not yet public.

“There are cost issues associated with that, there are operational issues associated with that,” he added, “if it requires employees to be out of the workplace for extended periods because of certain quarantining or exposure questions, then that will certainly affect the ability for companies and employers to maintain their operations. “

Some business groups say they are frustrated over the daylight between the latest recommendations from the Centers for Disease Control and Prevention and the requirements expected out of the forthcoming safety rules from the Labor Department.

In December, the CDC clarified that all workers should wear masks in accordance with federal recommendations. But last month, the CDC’s latest guidance said fully vaccinated people could gather indoors with other fully vaccinated individuals without a mask or social distancing. The agency also said vaccinated people could gather in small groups outdoors without masks even if a group includes unvaccinated individuals.

The agency didn’t specify how the new rules should be applied in the workplace, only cautioning that people “will still need to follow guidance” at their job.

Safety advocates and business groups expect that the Covid-19 workplace safety rules currently being finalized by the Biden administration will include a mask mandate for workers.

“The biggest challenge employers are going to face without question is going to be some sort of mask requirement,” said Eric Conn, a management side attorney at the firm Conn Maciel Carey, adding that there’s “tension” between a potential workplace mask mandate and what the CDC has been issuing in guidance related to vaccinated individuals.

A “really big tension that employers are going to face is, even if the rule does allow for some relaxation of mask or distancing requirements based on vaccination status, how do you get reliable information about your employees vaccination status?” Conn added, “that has been a big challenge that employers have faced.”

Inquiring about someone’s vaccination status also raises concerns about employers’ liability under federal discrimination and privacy law, business groups say.

The EEOC said that asking an employee to show proof of a Covid-19 vaccination wouldn’t violate disability law, but cautioned that any follow-up questions “such as asking why an individual did not receive a vaccination, may elicit information about a disability.”

Edwin Egee, vice president of government relations at the National Retail Federation, cautioned that if OSHA’s workplace safety standards also differentiate how businesses treat vaccinated and unvaccinated workers “it immediately creates a problem for employers because we’ve got to know the difference between who’s vaccinated and who’s not vaccinated.”

“You can ask,” Egee said, “but you’ve got to be really careful that you don’t implicate the ADA when you ask,” he said, referring to the Americans with Disabilities Act.

The EEOC hasn’t updated its Covid-19 vaccine guidance for employers since December, when Donald Trump was still president. The differences between the CDC and the Labor Department, Egee says, could “slow down the entire overall recovery.”


Dozens of organizations including the National Retail Federation and the National Association of Manufacturers sent a letter to the EEOC in February demanding guidance on vaccine incentives.

During a public meeting last week, the commission raised several questions about the issue to members of the business and worker advocacy communities, including whether cash vaccine incentives would be more coercive for lower-wage workers.

The commissioners also questioned whether providing swag like T-shirts or “I’m vaccinated” stickers would pressure employees unable to get the vaccine to disclose a disability or medical condition to colleagues.

The agency confirmed in April that it would provide guidance soon; but it has yet to do so.

“That’s a big question that manufacturers have asked,” NAM’s director of labor and employment policy, Drew Schneider, said. “We’re looking forward to [the guidance] so our folks know they’re on solid legal footing.”

Some employers are already providing incentives nonetheless.

“The reality of the situation is that employers are moving ahead, absent any kind of assurances from EEOC Freedman said. “They have been doing this as as they feel they can or need to.”

Eleanor Mueller contributed to this report.

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Millions of people are flooding back to work as the coronavirus ebbs, but businesses say the federal government’s failure to answer pressing questions over masks and vaccinations are complicating their reopening efforts.

Despite President Joe Biden’s new goal of getting 70 percent of Americans vaccinated by July 4, and his call for every employer to offer paid time off for workers to recover from the shot, the government has yet to answer whether it’s legal for businesses to offer vaccine incentives to their staff.

While some employers have already offered paid time off, swag or other perks, the Equal Employment Opportunity Commission, the federal agency in charge of policing federal anti-discrimination law, hasn’t clarified whether such incentives could “coerce” employees into getting the shot or disclosing their vaccination status in order to get the benefits.

And although the CDC said last month that vaccinated Americans only need to wear a mask when gathering in indoor public places, it’s unclear how that applies to private workplaces like factories and offices.

At the same time, the Labor Department is finalizing long-delayed Covid-19 emergency workplace safety rules that would last through November, which many expect to require workers to wear face masks, among other measures.

“How they handle the vaccine issue, the high number of people getting vaccinated, is one of the central questions around the [emergency temporary standard],” said Marc Freedman, vice president of employment policy at the U.S. Chamber of Commerce.

The uncertainty comes at a crucial time for the economy, as hundreds of thousands of people are heading back to work. Nearly 1 million new jobs were created in March, according to the Bureau of Labor Statistics. The latest jobs report out on Friday is expected to show that job growth accelerated even further in April, as more Americans got vaccinated and warmer weather began across the nation.

Worker safety advocates question the business community’s concerns, countering that worker safety rules will provide clarity and are essential to getting the economy back to normal.

Biden instructed the Occupational Safety and Health Administration to decide whether to issue emergency Covid-19 workplace safety rules by March 15. After weeks of delay, OSHA sent the rules to the Office of Management and Budget for review at the end of April, the first step before they are made public and go into effect.

“I think that industry is going to find every excuse they can to fight against the rule, and to raise that whatever it is that OSHA does is going to be an unbearable burden,” said Debbie Berkowitz, an adviser at OSHA during the Obama administration.

“I find that disingenuous, at best, because I think what’s really needed to get workers back into the economy, and to get the economy open, is that workers know there are requirements that employers have to meet to protect them,” added Berkowitz, now with the left-leaning National Employment Law Project. “And whatever OSHA does is going to be a minimum.”

Safety experts also point out a new report from the CDC this week concluded that if businesses were to slack off on taking workplace safety precautions outside of ensuring workers are vaccinated, it “could lead to substantial increases in severe Covid-19 outcomes, even with improved vaccination coverage.”

But business groups caution that whichever way the Biden administration falls when it comes to the protections employers must provide to their workers could reverberate throughout the economy.

“It could conceivably have a very significant negative impact, depending upon what it expects employers to do, and how much they have to change what they’ve been doing all along, to protect their employees,” Freedman said of the emergency temporary standard being finalized by OSHA, which is not yet public.

“There are cost issues associated with that, there are operational issues associated with that,” he added, “if it requires employees to be out of the workplace for extended periods because of certain quarantining or exposure questions, then that will certainly affect the ability for companies and employers to maintain their operations. “

Some business groups say they are frustrated over the daylight between the latest recommendations from the Centers for Disease Control and Prevention and the requirements expected out of the forthcoming safety rules from the Labor Department.

In December, the CDC clarified that all workers should wear masks in accordance with federal recommendations. But last month, the CDC’s latest guidance said fully vaccinated people could gather indoors with other fully vaccinated individuals without a mask or social distancing. The agency also said vaccinated people could gather in small groups outdoors without masks even if a group includes unvaccinated individuals.

The agency didn’t specify how the new rules should be applied in the workplace, only cautioning that people “will still need to follow guidance” at their job.

Safety advocates and business groups expect that the Covid-19 workplace safety rules currently being finalized by the Biden administration will include a mask mandate for workers.

“The biggest challenge employers are going to face without question is going to be some sort of mask requirement,” said Eric Conn, a management side attorney at the firm Conn Maciel Carey, adding that there’s “tension” between a potential workplace mask mandate and what the CDC has been issuing in guidance related to vaccinated individuals.

A “really big tension that employers are going to face is, even if the rule does allow for some relaxation of mask or distancing requirements based on vaccination status, how do you get reliable information about your employees vaccination status?” Conn added, “that has been a big challenge that employers have faced.”

Inquiring about someone’s vaccination status also raises concerns about employers’ liability under federal discrimination and privacy law, business groups say.

The EEOC said that asking an employee to show proof of a Covid-19 vaccination wouldn’t violate disability law, but cautioned that any follow-up questions “such as asking why an individual did not receive a vaccination, may elicit information about a disability.”

Edwin Egee, vice president of government relations at the National Retail Federation, cautioned that if OSHA’s workplace safety standards also differentiate how businesses treat vaccinated and unvaccinated workers “it immediately creates a problem for employers because we’ve got to know the difference between who’s vaccinated and who’s not vaccinated.”

“You can ask,” Egee said, “but you’ve got to be really careful that you don’t implicate the ADA when you ask,” he said, referring to the Americans with Disabilities Act.

The EEOC hasn’t updated its Covid-19 vaccine guidance for employers since December, when Donald Trump was still president. The differences between the CDC and the Labor Department, Egee says, could “slow down the entire overall recovery.”


Dozens of organizations including the National Retail Federation and the National Association of Manufacturers sent a letter to the EEOC in February demanding guidance on vaccine incentives.

During a public meeting last week, the commission raised several questions about the issue to members of the business and worker advocacy communities, including whether cash vaccine incentives would be more coercive for lower-wage workers.

The commissioners also questioned whether providing swag like T-shirts or “I’m vaccinated” stickers would pressure employees unable to get the vaccine to disclose a disability or medical condition to colleagues.

The agency confirmed in April that it would provide guidance soon; but it has yet to do so.

“That’s a big question that manufacturers have asked,” NAM’s director of labor and employment policy, Drew Schneider, said. “We’re looking forward to [the guidance] so our folks know they’re on solid legal footing.”

Some employers are already providing incentives nonetheless.

“The reality of the situation is that employers are moving ahead, absent any kind of assurances from EEOC Freedman said. “They have been doing this as as they feel they can or need to.”

Eleanor Mueller contributed to this report.

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