Employers find themselves treading a narrow path when it comes to confirming employee vaccination status while keeping within state guidelines, some employer representatives here say.

As employees return to the workplace in increasing numbers, employers are balancing employee safety with the most basic aspects of employment law. 

Jennifer Hanson, legal counsel at Associated Industries of the Inland Northwest, says the Washington state Department of Labor & Industries has placed employers in an uncomfortable position. 

“They get pushback from customers. They get pushback from their employees, but the employer is stuck taking a hard line in trying to enforce the law as it’s written today, which may change tomorrow,” Hanson says. 

Hanson says there are three ways an employer can confirm an employee is fully vaccinated: keep a record of immunization cards, keep a log of those who have shown their immunization record, or complete a signed, formal attestation.  

Hanson says employers who elect to keep a log typically will ask to see documentation, such as an immunization card, then log the information.

“I would say it’s split probably 50/50 as to what employers are choosing among two different options: either the attestation or the log,” Hanson says.

Employers who elect to keep a log typically look at documentation such as an immunization card before returning the documentation to its owner and recording a limited amount of information from the document, Hanson says.

“We’re advising them not to keep a copy of it, because then they’ve got to treat it like a medical record,” she says. 

Some employers might be hesitant to use the attestation method because of the potential for abuse, but Hanson says liability almost certainly would not fall on the employer, as long as the employer has made a good faith effort to follow masking requirements.

“They have to have some trust in their employees,” Hanson says. “Where the employer could get into trouble is if they have an employee who signed an attestation and then told (the employer) that they hadn’t been truthful, or the employer had some very concrete reason to believe that they weren’t being truthful.”

On May 21, the Washington state Department of Labor & Industries announced that employees who are fully vaccinated against COVID-19 no longer must wear a face covering and socially distance in the workplace, provided the employee has confirmed their vaccination status with their employer. Unvaccinated employees are still required to mask and distance at work. 

L&I’s guidelines, however, do not supersede an individual business’ decision to continue requiring face coverings. For example, Liberty Lake-based Itron Inc. is requiring all employees who are back in the office to continue wearing masks, senior public relations manager Alison Mallahan says.

Hanson says she expects the prospect of not being required to wear a mask in the workplace will be incentive enough for many people to get vaccinated, she says.

“The state may have given employers the perfect way to incentivize their employees to get vaccinated,” Hanson says. “A lot of employees who may have been hesitant to get vaccinated are not going to want to continue to wear that mask, and so they may relent and get vaccinated just so they don’t have to do that anymore.”

Liberty Lake-based Spokane Teachers Credit Union opted for digitally signed attestations beginning June 1, says Dan Hansen, the organization’s media and communications manager. Hansen says STCU employees are returning to the office in increasing numbers, rather than working remotely. 

About half of STCU’s 750 employees have attested to their vaccination status, but Hansen notes that’s not necessarily indicative of the proportion of the credit union’s work force that has been fully vaccinated.

“We know that employees working from home are unlikely to attest, that some others aren’t ready to remove their masks, and that there are some who would rather not say,” Hansen says.

STCU, which has branches in Washington and in Idaho, recently quietly ended mask requirements for employees and members at its Idaho locations, Hansen says.

“We removed the requirement in Idaho, just to be more in line with guidelines and common practice in Idaho, but we’re keeping it in the state of Washington,” Hansen says. 

Idaho employees don’t have to provide proof of vaccination in order to work without a mask, Hansen notes, per Idaho state guidelines.  

Jessica Matthews, human resources director for YMCA of the Inland Northwest, says the nonprofit organization has been strongly encouraging its employees to get vaccinated. Many of the organization’s clients are children who can’t yet get vaccinated against COVID-19, Matthews says, or who are otherwise medically vulnerable. 

Matthews says that some staff members have stated that they won’t get vaccinated against COVID for reasons other than medical or religious exemptions.

“We’re providing them with educational material, but we’re also respecting their ability to make their own decisions,” Matthews says. “We employ a lot of young people, so we’re really focusing on (the message of) protecting our participants, protecting the kids in our program and the older adults who come into our facilities. We’re trying to focus on protecting the vulnerable people we work with, not just ourselves.”

Matthews says about half of YMCA’s staff here has provided proof of vaccination for the nonprofit’s vaccine status log.

“Just from walking through the workplace, we have a lot of employees who are no longer wearing masks, which tells me that they showed their supervisor their vaccination card,” Matthews says.

Associated Industries’ Hanson warns that assumptions about face coverings could create a breeding ground for rumor and discrimination.

“Employers need to be careful about making sure that employees don’t jump to conclusions about why people are or are not wearing masks,” Hanson says. “Employers have to be careful about making sure that they’re on top of bullying or discrimination issues. There can be some legal ramifications if someone is discriminating against an individual for wearing a mask or not wearing a mask, and the reason that they are or aren’t is based on a disability or medical condition.”

L&I stated in the May 21 release that the new guidelines don’t affect existing masking requirements for some settings, including health care facilities, correctional facilities, homeless shelters, and schools.

Universities and colleges aren’t counted among those facilities that must continue masking requirements. However, some universities here have decided to require proof of vaccination for on-campus classes, housing, and activities ahead of the 2021-22 school year and the return of campus life.

Washington State University was the first public university in the state to implement a COVID-19 vaccination requirement. Gonzaga University announced June 5 that all campus-based students would be required to provide proof of vaccination, followed by Whitworth University with a similar policy on June 16.

Spokane Community College and Spokane Falls Community College haven’t announced plans for COVID-19 vaccination requirements ahead of the fall 2021 term.

Eastern Washington University announced June 3 that it will require students, faculty, and staff to show proof of vaccination before being allowed on campus in the fall, reversing an earlier policy.

EWU students and employees can upload their vaccination information on the university’s website, interim president David May says in a letter to the campus community. Those who provide proof of vaccination will be allowed to use shared workspaces without face coverings under L&I guidance.

May says input from local health officials and a change in guidance from the American College Health Association factored into the decision to require vaccinations. 

Alisha Benson, CEO of Greater Spokane Incorporated, says while she hasn’t heard of any local companies incentivizing employees to get vaccinated, many employers are allowing employees paid time off to get the vaccine or to recover from an immune response to the vaccine.

Any local business that chooses to offer an incentive to employees who get vaccinated against COVID-19 must adhere to rules issued by the U.S. Equal Employment Opportunity Commission, Hanson says.

“It’s been a little tricky, because there are still some open questions with the EEOC about how incentives will work and what can be offered as an incentive,” Hanson says.

If an employer is hosting an on-site vaccination clinic, an incentive must be something of nominal value, such as a water bottle or a $5 gift card, she adds.

Employers who are encouraging employees to seek out vaccination on their own have more leeway, but they must be careful not to offer something of such high value that employees feel coerced, Hanson says.

She notes that the guidance specifically states that any employee, vaccinated or not, can choose to continue wearing a face covering in the workplace.

“There will always be some people who feel more comfortable wearing a mask, and that’s okay, too,” Hanson says. “If employees still feel more comfortable wearing a mask, then they are allowed to continue to wear a mask.”

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