Employers and their in-house legal departments faced novel challenges this past year as they navigated the Covid-19 pandemic and a fully remote workforce.
Now, as state and local restrictions ease, employers are once again charting a new course — this time, how to bring employees back into the office safely. Employers must evaluate certain legal considerations while determining the new way forward.
Vaccinations. According to Equal Employment Opportunity Commission guidance, employers may mandate vaccinations as long they provide reasonable accommodations for employees with disabilities or sincerely held religious beliefs, absent an undue hardship. State and local laws may also be a concern, though; a number of states have proposed or enacted legislation that would prevent such mandates. So, employers should monitor applicable laws. Companies that require vaccines need a process for engaging with employees who require reasonable accommodations. And given that such mandates could alienate a portion of the workforce still leery of the vaccine, leaders must be prepared to enforce the mandate consistently against those who decline for unprotected reasons. Alternatively, businesses can opt to encourage or even incentivize employees to get vaccinated.
Incentives. Cash, gift cards, paid time off or other incentives for employees to get vaccinated could be considered coercive or might have a negative impact on employees whose decisions are based on protected religious or health concerns. Incentives could also impact wellness programs or policies like paid time off and compensable time, so pay attention to those and other factors in designing an incentive program. To comply with the Americans with Disabilities Act, employers must appropriately store and keep confidential any employee medical information obtained as a result of a vaccine or incentive program.
Varying legal frameworks. Then there’s the ever-evolving and often-conflicting patchwork of federal, state and local laws and guidelines.
For instance, even though the Centers for Disease Control and Prevention recently announced that fully vaccinated people could resume normal activities without wearing face coverings, some parts of the country still require masks in the workplace. As state and local governments relax restrictions for fully vaccinated people, some will operate on the honor system while others will require proof. One county in California even requires vaccination status be tracked, with status updates from unvaccinated employees being required every 14 days. Keeping tabs on the evolving guidelines in your area is key to a successful transition back to the office.
Clear communication. The lack of a national standard has created confusion and conflicting rules, so develop and share a detailed plan with all employees for a safe reopening. This includes guidance on measures taken to protect the health and safety of returning workers, how employees can protect themselves and others, and a plan for action if an employee exhibits symptoms of, or tests positive for, Covid-19 once back in the office. Clear and consistent communication is essential.
The plan should also address rollout of new practices, changes to temporary policies and reinforcement of existing guidelines. For instance, businesses that implemented a temporary practice for remote verification of Form I-9 should clearly explain the plan to resume in-person verifications once normal operations resume. Managers and HR professionals will be critical to the success of any reopening plan and should be trained on how to address potential issues prior to reopening.
Ongoing education. Naturally, there are many other legal considerations for employers considering reopening offices. Close partnership with in-house counsel — who have access to outside firms and legal resources focused on changing laws and guidelines — is key to designing a sustainable and compliant plan. Staffing industry employers should also take the lead from their clients on any individual worksite requirements that may impact flexible workers.