Returning to the Physical Workplace: Legal and Practical Issues
Director of Member Legal & Compliance Services, Amy McAndrew spoke alongside John Larock, Director of HR at Qfix, during our 14th Annual HR & Employment Law Conference. Both McAndrew and Larock spoke about the legal and practical issues around returning to the physical workplace.
Realistic Timeline for Returning To the Physical Workplace
During her presentation, McAndrew explains what is included in a realistic timeline for returning to the physical workplace. First, she recommends staying up to date on your state and local requirements. Because every state has been constantly updating and changing their requirements, it is important to appoint someone to understand these changes and seamlessly implement them in your workplace. Second, McAndrew advises employers to consider a phased-in approach. Working remotely has become the new normal for people. As a result, many will have to re-adjust to working in person full-time, if this is your desired endgame. It is also important to be mindful of childcare challenges, especially during this time where children are out of school for the summer. Because of this, McAndrew explains that, if you have flexibility, now is not the time to bring employees back into the office full-time.
FAQ: Can I Deliver an Ultimatum? Return to the Office or Termination?
- If employees do not have an employment contract, the answer to this question is yes. However, you have spent time, energy, and money training these employees, and termination is not the best option. Terminating in these circumstances is also not helpful from an employer relations point of view or a future recruiting point of view.
Importance and Contents of a Safety Plan
When drafting a safety plan, it is important to ask yourself what you really need, especially when thinking about current federal, state, and local guidelines. Once you have written a safety plan, you need to train your employees and managers to comply with company guidelines.
Likely Components of a Written Safety Plan
- If you have not done so already, designate someone to be your Pandemic Safety Officer. This way your organization has someone staying up to date with all things COVID-19 such as changing guidelines and orders.
- Implement & update social distancing protocols.
- Continue disinfection and cleaning practices. This includes wiping down counters and any items in a shared space after. Make sure sanitizing stations are placed throughout the office.
- Continue screening protocols for employees and visitors. This will be helpful in the long run as it will hopefully keep employees home when they are sick.
- Continue to use face masks in the office as dictated by state and local mandate.
- Follow CDC procedures for Isolation and Quarantine for those who have been exposed to COVID-19, keeping in mind that this procedure looks different for vaccinated and unvaccinated people.
- Include a complaint procedure in your written plan so that employees will come to you first with any issue they have.
- Implement training and education for your employees and managers.
- Treat screening information as confidential medical information.
The Role of Vaccination in Return to Work
McAndrew explains that employers have the power to require the COVID-19 vaccine. However, most employers have not mandated the vaccine for a number of reasons, including potential workers’ compensation claims and/or lawsuits. Instead, most employers have opted to strongly encourage the vaccine. This can be done through education, improving access, bonuses, and benefits. Some benefits may include only allowing vaccinated employees to return to the office and go on client visits. Ultimately, employers should have a vaccine policy whether it is mandatory or voluntary.
FAQ: Can We Ask Employees for Proof of Vaccination?
- Yes, you can ask for proof of vaccination as it is not prohibited under the Americans with Disabilities Act. However, do not ask employees why they have not gotten vaccinated and make sure to check state laws for any potential prohibitions.
High Risk Employees & Reasonable Accomodations
While this likely will be less of an issue today with the current availability and access to the vaccine, McAndrew explains that employers may still ask employees if they require reasonable accommodations under the Americans with Disabilities Act. At the same time, there are some accommodations that employees are not entitled to, including accommodations for a vulnerable family member, age, and childcare issues. However, employers can go beyond the legal requirements. Granting such accommodations could result in better employee retention.
Because many employers transitioned to remote work during the pandemic, it may change the landscape for future requests for remote work as a reasonable accommodation under the ADA. COVID-19 has also paved the way for employers to hire outside of their immediate geographic area. Because of this, employers must pay attention to the different state employment laws for company hires.
Recommendations from John Larock:
- Follow guidelines to prevent infection at work. Designate someone to help with daily screening and temperature checks for both your visitors and employees.
- Conduct anonymous surveys to see who is vaccinated, who is not, and who is interested in getting vaccinated. This can help your company set a goal for vaccinated employees.
- Provide incentives to encourage employees to get vaccinated. Specifically, Qfix has a real-time thermometer outside the office, which records the percentage of vaccinated employees. Once it reaches 70%, the company has promised its employees a celebration.
If you have any questions regarding anything discussed above, call or email the MEA hotline.