Small Businesses and Post COVID Traps

Jake’s Bookstore (a fictious bookstore) in town fared well during the pandemic due to curbside pick-up and internet sales. The governor had lifted the mask and social distance restrictions a few days ago for businesses. The CDC released new guidance that fully vaccinated people are no longer required to wear masks outdoors or indoors except under certain circumstances.

Jake contacted his attorney at Simply Good Law to assist him in interpreting the CDC guidance and how it will affect his employees and customers at the bookstore. His attorney provided him with advice and a written policy to protect his business and employees.

His attorney explained to him that at the present time the honor system will determine the vaccinated from the unvaccinated. She reminded him all employees should be treated the same while deciding whether they will follow the CDC guidance or not. Choosing to treat some employees differently and singling out specific individuals or customers to wear masks or not wear masks could lead to a discrimination lawsuit. They decided on a clear plan about bringing employees back to the office and what exactly that will entail masks or no masks.

Jake asked if he could ask his employees whether or not they had been vaccinated. She explained to him that it was not a HIPPA violation to inquire. It is alright to ask, however, it is not alright to ask why or why not employees have received the vaccine, because it could lead it could elicit information about a disability. The advantage to asking employees is for any obvious safety reasons that would impact the safety of the workforce.

Jake was concerned about employees who refused to return to the bookstore and asked his attorney if those employees could be terminated. She explained that he could terminate them unless those employees fall into a protected class, that is, if the employee has an existing medical disability, requiring him to engage in an interactive process to determine how the employee can be accommodated. An employee with a general fear of COVID who is not in a protected class can be terminated for failing to return to the workplace. She told him that it is in the best interest of the bookstore to communicate to reluctant to return employees the safety plans and policies that are in place to keep everyone safe at the workplace to alleviate their concerns. This article is for information purposes only and is not meant to be construed as legal advice nor does it form an attorney client relationship with the reader. For more information or discussion contact me at jennie@simplygoodlaw.com or at 978-681-0017.

PC: Simon Gibson