As vaccination rates increase, officials across the country are reconsidering their health and safety protocols and workplace reopening guidance. Here are a few of the most recent changes that employers need to know.

On-site Employee Health Screening No Longer Required in San Francisco but Masks and Distancing Remain

On May 20, 2021, San Francisco’s Department of Public Health updated the city’s Health Order to loosen COVID-19 restrictions. Under the new rules, businesses are no longer required to perform health screenings for all personnel and patrons, unless required by the state. Public health officials credited the ongoing vaccination effort in bringing COVID-19 cases to the lowest levels seen during the pandemic. As of May 19, 76% of eligible San Francisco residents have been vaccinated, one of the highest vaccination rates in the country.

Details From the San Francisco Department of Public Health Website:
  • SFDPH no longer requires that organizations perform on-site pre-entry health checks. This includes: screening for symptoms of COVID-19, asking about close contact with others who have COVID-19, measuring temperatures, or verifying completion of remote self-screening. Instead, SFDPH recommends that all individuals monitor themselves for COVID-19 symptoms or exposures, and that employers ask employees to evaluate their own symptoms before reporting to work.  If they have symptoms, individuals should isolate, except to get tested, or seek medical care when necessary.
  • Organizations may choose to continue on-site health checks or verify remote self-screening and, in some cases, state and other regulatory agencies may require it. If an organization conducts on-site health checks, it should be done safely, respectfully, and under applicable privacy and confidentiality laws.  For additional resources, including optional sample screening forms, see www.sfcdcp.org/screen.
What’s Still Required?

The Order:

  • Continues generally to require everyone to wear face coverings while outside their residences indoors or outdoors in crowded areas, subject to limited exceptions; and
  • Continues generally to require everyone to follow social distancing requirements, including urging people to stay at least six feet away from members outside of their household, subject to limited exceptions.

Unlike SF, Other Jurisdictions Are Relaxing Mask and Distance Requirements for Vaccinated Workers

Some jurisdictions (e.g. Washington and Oregon) are relaxing masks and distance requirements for vaccinated workers, but requiring employers to first verify vaccination status.  Other jurisdictions are relaxing requirements but leaving it up to employers to decide whether or how to police vaccination status (e.g. Michigan).  Still other states have barred employers from requiring proof of vaccination status.

Washington and Oregon Require Employers to Verify Vaccination Status

            Washington

Washington’s new Department of Labor and Industries’ guidance issued May 21 provides that fully vaccinated employees do not have to wear a mask or socially distance at work, unless their employer or local public health agency still requires it. However, the Washingtong DOL guidance puts the burden squarely on employers to confirm whether workers are fully vaccinated before ending mask and social distance requirements. Employers must have workers either sign a document attesting to their status or provide proof of vaccination. Acceptable documentation includes a CDC vaccination card, a photo of the card, documentation from a health care provider, a signed attestation from the worker, or documentation from the state immunization information system.

Evidence of the verification system must be available to labor authorities upon request. Specifically, employers must be able to demonstrate they have verified vaccination status for workers who are not masked or physically distanced by:

  • Creating a log of workers who have verified they’ve been vaccinated and the date of verification,
  • Checking vaccination status each day as workers enter a jobsite,
  • Marking a worker’s badge or credential to show that they are vaccinated, or
  • Other methods demonstrating an employer has verified worker vaccination status may also meet the standard.

Washington employers may still require mask use if they choose. And with some exceptions, employers must allow employees to wear a mask or other protective equipment if they choose to, regardless of vaccination status.

If an employee is not fully vaccinated or their vaccination status is unknown, employers must continue to require masks and social distancing. The new guidance does not change masking rules for health care settings like hospitals, long-term care, or doctor’s offices; correctional facilities, homeless shelters, schools, child care centers or day camps. Last, the federal order requiring masks on public transportation remains in place.

Oregon

Oregon’s Health Authority issued interim guidance on May 18 for fully vaccinated individuals stating “individuals who are fully vaccinated with proof of vaccination status are not required to wear a mask … or maintain physical distancing except” in certain settings. However, employers must:

  • Have a policy for checking for proof of vaccination status of individuals; and
  • Request proof of vaccination status from each individual; and
  • Review each individual’s proof of vaccination prior to entry or admission.

“Proof of vaccination status” means documentation provided by a tribal, federal, state or local government, or a health care provider, that includes an individual’s name, date of birth, type of COVID-19 vaccination given, date or dates given, depending on whether it is a one-dose or two-dose vaccine, and the name/location of the health care provider or site where the vaccine was administered. Documentation may include, but is not limited to, COVID-19 vaccination record card, or a copy or digital picture of the vaccination record card.

Michigan Relaxes Mask and Distancing Requirements for Vaccinated Individuals but does not Instruct Employers to Collect Information About Vaccination Status

On May 15, the Michigan Department of Health and Human Services issued an updated Gatherings and Face Mask Order that follows the CDC’s Guidance for Fully Vaccinated People released on May 13, which says that fully vaccinated individuals do not need to wear masks indoors or outdoors. Then, effective May 24, 2021, the Michigan Occupational Safety and Health Administration (MIOSHA) revised its COVID-19 Emergency Rules.

Under the new rules:

  • Employers may allow fully vaccinated employees to go unmasked in the workplace even when they cannot consistently maintain a six-foot distance from other individuals. (Note that even fully vaccinated people must continue to wear face coverings when in the healthcare setting where patients may be present and when using airplane or public transportation as required by CDC guidance.)
  • Continued self-screening is required for all employees or contractors entering the workplace (daily screening no longer requires temperature screening, but can be at a minimum a questionnaire covering symptoms and suspected or confirmed exposure to people with possible COVID-19). However, self-screening records only need to be retained for non-vaccinated employees or contractors.

The new rules do not instruct employers whether or how to collect information about vaccination status. Presumably, it is up to employers whether to collect this information. Several other states, including Illinois, Arizona, and Massachusetts, have taken the same approach.

Some States Are Actively Prohibiting Requiring Proof of Vaccination Status.

A handful of states have recently passed legislation banning vaccine passports (and a number of states have pending legislation to do the same). Such legislation impedes companies from requiring proof of vaccination before allowing employees to enter Company premises. Alabama, Florida, Texas, Idaho and Montana have limited required proof of vaccination for public, and in some cases private, employers.


Of course, the foregoing demonstrates the near impossibility of a nationwide vaccination policy. For assistance navigating these or other COVID-19 health and safety orders, contact your Baker McKenzie employment attorney.