Of Counsel: Managing in a New Workplace World

Bringing the troops back to the office after the COVID-19 crisis requires forethought.

The COVID-19 pandemic has led to a transformation of the workplace and an explosion of remote work, including for employees previously not covered under employers’ telecommuting policies and employees who never envisioned working full-time from their dining room tables or spare bedrooms (author included). Despite the reopening of state economies, many employers continue to allow some or even most of their work forces to work remotely.
As the country is eagerly awaiting large-scale vaccine availability, these employers and employees are preparing for the full reopening of work sites. Before inviting employees to return to a work site, though, employers should consider and plan for the following: 

Employees will want to know it is safe to return. Whether employees are invited to return to a work site before they are vaccinated and/or herd immunity is reached, employees will still expect changes to their work site. Effective communication and education of the “new normal” is the key. While many executives and key personnel have been working diligently on return-to-work strategies, employees working from home have not had that visibility—or focus. Employers should consider how best to transfer necessary and helpful information to employees before they return to showcase new safety protocols put in place to keep employees safe in a post-pandemic environment.

Should a company implement a mandatory vaccination program or ask employees to disclose their vaccination status before
returning to a work site? According to the Equal Employment Opportunity Commission, under federal law a private employer can require an employee to be vaccinated for COVID-19 as a condition of continued employment. However, there are significant exceptions for employees who are disabled or who have sincere religious beliefs which prohibit or restrict the use of vaccines. Before choosing to mandate employee vaccination (subject to the noted exceptions), employers must consider state laws and the potential for legal liability resulting from harm or adverse reactions suffered by an employee as a result of the vaccine. For this reason and other non-legal reasons, most employers are not implementing mandatory vaccination programs. 

Instead, employers are considering offering incentives to employees who voluntarily choose to be vaccinated. Before announcing an incentive program, consider whether the incentive will actually motivate employees to be vaccinated, or simply reward those who were always going to get the vaccine when available. In addition, employers must consider whether the incentive would constitute a wellness program under the Employee Retirement Income Security Act. If so, the company will have legal compliance requirements. However, the EEOC has stated that simply asking employees for proof of vaccination in order to qualify for an incentive does not constitute a medical inquiry as defined under the Americans with Disabilities Act. 

Likewise, the EEOC has said that employers who are not im-plementing a mandatory vaccination pro-gram or an incentive can ask employees to disclose their vaccine status (so long as employers do not ask an employee to explain why they are not vaccinated or disclose medical information). There are a number of reasons why an employer may wish to track overall employee vaccination num-
bers. However, before doing so employers should identify the reason—and commun-icate that rationale to employees at the time the question is asked—and maintain any records associated with employee vac-cination status in a confidential manner.    

What should employers do if an em-ployee who has been working remotely says ‘No Thank You’ to an invitation to return to the work site? 

This will happen; employers must be prepared to respond. First, they should identify reasons employees may wish not to return to the work site and/or continue working from home, then develop talking points and strategies for responding. An employee who has chosen not to be vaccinated may be concerned about personal safety, while other employees believe they are more productive and efficient working from home. 

Many employers have chosen to im-plement a dedicated report procedure for employees to discuss concerns they may have following an invitation to return—such as a dedicated email address or phone line. No matter which process is used, em-ployers should ensure that: the assigned individuals are prepared to respond to the anticipated questions, fears, and concerns, and that the assigned individuals are trained on how to spot and handle situations where an employee has put the employer on notice that their concerns relate to a personal or family medical reason. In such situations, an employer may have a legal obligation to consider reasonable accommodations, including protected leaves of absences and continued remote work. 

Bottom-line: Employers looking to reopen (or fully reopen) should plan for and consider what employees will expect to hear from the company, how they will respond to questions and concerns, and what, if any, position the company will take on employee vaccination status.