Jul. 5—PLATTSBURGH — Requiring unvaccinated employees to wear masks is 100% within employers' authority, local attorney Jacqueline "Jaci" Kelleher said Wednesday.
Pointing to the more contagious nature of the newer delta variant of the coronavirus, she posited that the question of whether they had to do so was the wrong one.
"I think (the right question is) is it a good idea for our employees to wear masks because those unvaccinated employees are going to be traveling, somebody is going to get exposed to that ... delta variant and ... it's going to rip through your workplace and your vaccinated individuals will be sitting in the office holding the bag.
"Not that I have a strong opinion on that," the Stafford, Owens, Piller, Murnane, Kelleher & Trombley PLLC partner added, laughingly.
Speaking during a webinar hosted by the North Country Chamber of Commerce, Kelleher explained that the masking issue is currently in flux in New York State.
She pointed to certain policies that still have yet to be repealed, the state's intent to adhere to U.S. Centers for Disease Control and Prevention guidelines and a press release from Gov. Andrew Cuomo's office saying unvaccinated individuals continue to be responsible for wearing masks.
"Without a doubt, employers may still require unvaccinated individuals to wear masks in the workplace and practice social distancing," Kelleher said.
"I cannot tell you definitively that New York is still requiring employers to require unvaccinated individuals to wear masks in the workplace."
If employers are OK with 29% of their workforce — a randomly chosen number — who are unvaccinated and may be out of work due to illness or exposure, that's fine, Kelleher said.
"But, you know, if you've got concerns about that, I would strongly recommend that you consider continuing the mask mandate."
Kelleher also suggested that businesses talk to their lawyers about any questions they may have.
Kelleher explained that federal law permits a vaccination mandate, which involves a thoughtful policy and not simply having an owner threatening to fire people who do not get vaccinated.
When crafting such policies, employers must watch for disparate impacts in things like health care access.
"You need to be careful to make sure that they are going to have equal access to the vaccination program that you're putting forward whether it's voluntary or involuntary," Kelleher said.
Employers are allowed to ask employees about their vaccination status and require proof, though that information is confidential and must be stored separately from personnel files.
Kelleher added that, if the policy requires people to get vaccinated, reasonable accommodations will need to be made under the Americans with Disabilities Act for those who cannot be vaccinated for medical reasons.
"Some examples that the (Equal Employment Opportunity Commission) is providing of what those accommodations might be: wearing a face mask at work, working at a social distance, working a modified shift, getting periodic COVID tests, working with a telework arrangement or a reassignment."
Supervisors and managers should be trained on the policy, Kelleher said, additionally recommending that employers do research and seek legal advice before deciding to implement one.
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