Legal Guide: Vaccine and Mask Mandates in the Workplace

No decision will meet with everyone's approval, and there is no one-size-fits-all solution for every company. This knowledge can make you feel stuck between a rock and a hard place.

The main priorities of the human resources department are: 1) To explain to employees why a particular decision was made. 2) To transform the 'I' mentality throughout the company into a 'we' mentality.

The key to tackling these complex challenges lies in always putting the health and safety of your employees first. This article takes an in-depth look at the various factors you should consider when making decisions regarding the safety of employees and external parties, including vaccination requirements, mask mandates, and other measures. Based on our experience at IceHrm, I will finally provide recommendations on how to engage your employees with your health and safety policies.

What Responsibility Do You Have Towards the Public?

Think about your daily routines and the nature of your business. At IceHrm, we communicate with our customers online and by phone, so frequent in-person contact plays a minor role in our health and safety policies. However, in businesses like schools, medical and dental practices, restaurants, supermarkets, and other industries with many personal interactions, you need to consider how to protect visitors from each other and from your employees.

This is more than just good customer service. The pandemic is not over – the Johns Hopkins Coronavirus Resource Center reports that in the United States alone, there were 445,984 new infections and 12,436 new deaths in May 2021 – so this is an urgent concern.

What Responsibility Do You Have Towards Your Employees?

Deciding for or against a vaccination or mask mandate can be very difficult. After more than a year of lockdowns, social distancing, working from home, and more turbulence and stress than we could have imagined, we all long for some relief from this enormous pressure. At the same time, we remain aware of the risks of acting carelessly. These two aspects, along with the strong emotions and opinions associated with them, can make a mandate feel like much more than just a simple, logical decision. Ultimately, however, the employer's responsibility remains, and it is precisely this that should guide your policy decisions.

Additional Labor Laws and Guidelines For Employers Regarding Masks and Vaccinations  

In principle, employers have the same options with employees as they do with non-employees – requiring vaccinations, mask mandates, social distancing rules, or leaving the decision up to the individual – with many of the same benefits and limitations. However, employers must adhere to some additional labor laws and guidelines.

• Vaccination Requirement: Employers can require their employees who are physically present at the workplace to get vaccinated (some restrictions apply under the ADA and Title VII). Proof of vaccination: Employers can require
• Proof of Vaccination: Employers can request proof of an employee's vaccination.
• Workplace Safety: According to OSHA, U.S. employers are required to comply with standards for safe and healthy working conditions. To help prevent the spread of COVID-19, OSHA strongly encourages employees to wear masks, maintain social distancing, and get vaccinated as soon as possible.
• Mask Mandate: While employers in workplaces where everyone is fully vaccinated no longer have to provide protection, OSHA still recommends that they "take measures to protect unvaccinated or otherwise at-risk employees" (employees may be entitled to special accommodations under the ADA and Title VII). This does not apply to federal regulations for healthcare facilities and public transportation. Please check your state or city health and safety regulations, as mask policies and laws may vary.
• Employer Liability: As with customers and visitors, employers can be held liable if an employee contracts COVID-19 at the workplace. Please check the liability laws in your state.
• Separate Rules For Vaccinated and Unvaccinated People: Since the CDC mandates different mask rules for vaccinated and unvaccinated individuals, you could establish different rules for different groups of employees. This would be permissible under OSHA and EEOC regulations. However, this could lead to divisions within the company or deepen existing political rifts and socioeconomic inequalities. The latter could be prohibited under EEOC regulations if your policies exclude people based on protected characteristics.
• Federal and State Employees As Well As Contractors: Currently, there is no COVID-19 vaccination requirement for federal employees. However, unvaccinated federal employees and contractors must continue to wear masks in federal buildings. Fully vaccinated employees and contractors are exempt from the mask requirement. The regulations for state employees vary by state. For example, in California, masks are still required in state correctional facilities and public schools, whereas Utah lifted the mask mandate for state facilities in mid-May and for schools in June.
• Different Government Regulations: Since each federal state has different health and safety regulations, you might feel uncomfortable if your policies are stricter than required. This could be problematic for both employees and customers. Conversely, in states with few or no restrictions, where your company complies with them, you may receive complaints from employees who believe your company should do more to protect workers – regardless of government regulations.

How Do You Manage To Get Your Employees On The Same Page Once a Decision Has Been Made?  

As I mentioned at the beginning, there is no universal solution for every company. However, once you have made a decision, you can make the implementation of your health and safety policies smoother and more effective by prioritizing training and putting everyone's well-being at the forefront.

Your top priorities are:

1. Explaining to employees why you made this decision.
2. Replacing the 'I' mindset throughout the company with a 'we' mindset.

If you can clearly explain your motives, you will be better prepared and able to confidently address resistance from employees. Additionally, employees will gain more trust and the assurance that you have their best interests in mind.

What Measures Should The HR Department Take To Inform And Educate Employees?

Education means timely, relevant information and clear communication. Your company needs to develop a coordinated plan to win employees over to your policies. This includes providing information on:

• Vaccine safety, side effects, and effectiveness with reliable, credible, and easily accessible information – this alone can increase the likelihood of vaccination by up to 82 percent.
• What employees need to consider when returning to the workplace (health questionnaires, personal health monitoring, registration procedures, mask and vaccination policies, social distancing rules, etc.).
• Company incentives that motivate employees to be safer at work, such as on-site vaccination centers or paid time off for vaccination appointments – just booking vaccination appointments increases the likelihood of getting vaccinated by at least 45 percent.
• Available health insurance coverage for vaccinations or in case of illness.
• Recommendations from local health authorities, as the situation can change quickly.
• Current information on the impact of the pandemic on your workplace.

In all decisions, it is important to always explain the reasons behind them. For some, this will never be enough, but you must keep discussing it so that your employees know you are doing your best and acting for the right reasons.

Employees are more willing to get on board when they have more freedom and choices. Therefore, keep them regularly informed and emphasize all the decisions they can make themselves.

Training in Practice: An Example from IceHrm

At IceHrm, we decided to introduce a mask requirement in the office as long as employees are not at their workstations, and to ensure that the minimum distance is maintained there. At the same time, we implemented a hybrid work model that allows employees to work partially or entirely from home. Our idea was that this way, everyone can choose the work format that is most comfortable for them.

This is how we structured the training and implementation of this hybrid model with a mask requirement:

1. Before reopening the office, we conducted a survey to ask employees about their personal preferences for the period after returning to the office: working exclusively in the office, partly in the office and partly from home, or working exclusively from home.

• The employees then individually coordinated with their supervisors to align their preferences with their responsibilities.

2.  Based on this information, we developed a plan for returning to the workplace,         which includes the following logistical measures:

• Ensuring that flexible employees have a fixed workspace when they arrive at the office.
• Supporting employees in the office in maintaining social distancing throughout the workday.
• Enabling employees working from home to stay connected with their team.

3.   We discussed our plan in several company-wide meetings with all employees,            explaining the date for the full reopening of the office as well as the different            working models.  

4.  Initially, we launched a pilot project, which is still ongoing, to test this new              arrangement. We also regularly spoke with employees about this in our                      meetings and in the communications regarding the office reopening.  

5.    After this first testing phase, we will reassess the situation as a company and            give employees the opportunity to adjust or change their working conditions.

How Do You Promote a 'Team' Mentality In Your Company?  

When we are aware that we are all in the same boat, we can think more altruistically and make decisions that benefit everyone. Here are some recommendations from our experience at IceHrm.  

Choose policies that protect everyone.

The pandemic is a polarizing topic; employees may have incompatible or controversial views. If safety measures are not implemented carefully, they can further exacerbate the situation by creating a feeling of being excluded or stigmatized. Therefore, education must form the foundation and ensure that everyone understands that the decisions made are intended to protect everyone, not just a specific group.

At IceHrm, the division brought on by the pandemic was an important consideration when setting our policies. Although the CDC provides different rules for vaccinated and unvaccinated people, we did not want to create two separate groups by introducing two different mask policies. Since we decided against a vaccine mandate, we felt that a mask requirement for all employees was the best choice to keep everyone protected.

Observe The Local Regulations At Your Different Locations

Even if you want to standardize your policies, you must comply with local rules and regulations. This may require adjustments at the respective sites. Take this opportunity to demonstrate your skills in employee training:

• Communicate the different rules that apply at the various locations.
• Help your employees navigate these differences when they need to work at different locations.

IceHrm has offices in Utah and California. Since stricter health and safety regulations apply in California than in Utah, we had to closely monitor pandemic regulations in both states and act accordingly.

Give Your Employees Choices

We all respond better when we have choices. Having options makes us feel better equipped to make the right decision. Thanks to our hybrid model, IceHrm employees do not have to wear a mask or get vaccinated if they do not want to. For example, if an employee asks why they still have to wear a mask in the office, instead of starting a discussion, we can remind them that there are options to go without a mask while still protecting themselves and everyone else at the workplace.

At IceHrm, employees do not have to wear a mask:

• At their desk (only when they are on their feet)
• At home office

Respect different opinions.

The pandemic is a highly sensitive topic, and therefore any measures you choose may be perceived as unacceptable by some employees. For some, the measures taken may not be sufficient, while for others, any deviation from pre-pandemic guidelines goes too far. Both positions offer interesting points for discussion, but this discussion is better held outside the workplace and especially outside of personnel decisions.

Treat every opinion and every individual with respect and show them that you value their contribution. But remember: every employee has the freedom to make their own decisions, including whether or not to work for a company whose policies they disagree with.

Navigating workplace health and safety during a pandemic involves making complex decisions that prioritize the collective health and safety of employees while respecting legal and emotional nuances. The key to successful implementation lies not just in the policy itself, but in the HR department's ability to clearly explain the rationale and transform individual resistance ("I" mindset) into communal adherence ("we" mentality). This is achieved through proactive training, transparent communication, and offering choices like a hybrid work model, as demonstrated by the IceHrm example. Leveraging IceHrm's capabilities for Policy Management, Employee Surveys, and Internal Communication is essential. These tools allow HR to efficiently gather employee sentiment, distribute location-specific policy updates (like those for Utah vs. California offices), and manage flexible work arrangements, ensuring the company's health measures are consistently applied, legally compliant, and genuinely supported by a unified workforce.