Employers face several challenges in bringing employees back to traditional workspaces after this life-changing event. Employees may be anxious and fearful to return because of health concerns for themselves or vulnerable family members. They could now have complications with child or elder care that they did not previously. Some employees may simply prefer not having to commute to work every day.
Handling these issues with compassion and consistency is essential, especially given the tightening of the job market. Even in the best of times, failure to retain good employees meant a hit to the bottom line.
Here are answers to the most common questions we get from our small business clients.
Can we mandate all employees get vaccinated before they return? And if we don't, how should we handle vaccinated vs. unvaccinated worker populations?
The Equal Employment Opportunity Commission (EEOC) recently confirmed its position that private employers can mandate the COVID-19 vaccination for those employees without an ADA or sincerely held religious belief exemption. The real question is should your organization adopt a mandatory vaccination policy.
Leadership may think mandating the vaccine is the ticket to getting operations back to normal, but HR partners must present the pros and cons of forcing employees to take the vaccine. Arguably, mandating vaccination may result in a healthier workplace, but at what cost? Forced vaccination policies can:
Leave employees feeling resentful, undermining morale;
Result in turnover;
Cause conflict among employees;
Create risks for litigation because of decisions made regarding ADA or sincerely held religious belief exemptions; and
Create risk for later claims that the vaccine caused a condition
If your organization opts for mandatory vaccination, and you've verified there is no local or state law preventing it, follow EEOC guidance for compliance and to ensure employee privacy. Be prepared to consult counsel before taking adverse action for failure to get vaccinated.
Those employers strongly encouraging vaccination rather than mandating them should prepare for possible workplace conflicts over it. The issue is highly polarized. Unvaccinated workers may feel ostracized for their views, while vaccinated employees may think those who didn't get the shot put everyone at risk.
Part of the return-to-workplace plan should include dealing with the two groups in a fair, compassionate manner that keeps the workforce and visitors safe. Some suggestions:
Remind employees of policies that forbid bullying, incivility or harassment.
Reaffirm the company's commitment to mutual respect in the workplace.
Continue to follow social distancing and masking guidelines.
Provide a way to resolve conflicts informally.
Can we ask an employee if he/she has received the COVID-19 vaccine?
Under federal law, employers are permitted to ask employees if they have been vaccinated against COVID-19; however, caution should be taken to avoid soliciting information related to an employee’s medical condition. A simple yes or no response from employees should be sufficient and employers should instruct employees not to provide additional information about the reason they may not have received the vaccine. The Americans with Disabilities Act (ADA) requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination.
Also, be cautions not to ask for vaccination status in a group setting.
Can an employer ask for proof of COVID-19 vaccine?
If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own healthcare provider, the employer cannot mandate that the employee provide any medical information as part of the proof. If employers ask workers to provide vaccination proof from a pharmacy or health care provider, you need to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.
What do you and your managers need to know about asking your employees about their vaccine status?
While it is permissible to ask for vaccine documentation, you should affirmatively inform employees that they do not need to provide any additional medical or family history information.
You should treat the documentation you receive as a confidential medical record.
You may want to avoid retaining copies of any actual vaccine card, as that could trigger safety recordkeeping obligations that you’d rather avoid. Simply create a confidential spreadsheet noting employee name, type of shot received, and date of the last dose.
Refrain from asking follow-up questions – such as an employee’s reasons for not being vaccinated – that could trigger Americans with Disabilities Act (ADA) or Genetic Information Nondiscrimination Act (GINA) obligations.
Despite your natural curiosity, don’t ask how your employees fared after their vaccine (especially the dreaded second dose). As harmless as it might seem, some questions could reveal disability status that you would rather not know.
Can we fire an employee for refusing to get a COVID-19 vaccination?
Absent a medical or religious exemption from a mandatory vaccination requirement, an employer may be able to make a COVID-19 vaccination a condition of employment and terminate employees who do not comply. However, employers should tread carefully with this practice and consult legal counsel prior to making termination decisions.
Can we require an unvaccinated employee to wear a mask?
Yes, you can require unvaccinated employees to continue to wear masks.
Some employees may report other employees who fail or refuse to wear their masks, even though they have not been vaccinated. There may also be some employees who refuse to get vaccinated but want to challenge an employer’s continued authority to require face masks.
Focusing on safety and respect may help employers prevent conflicts from happening and keep them from escalating in the workplace. Requiring face masks in the workplace may be a legitimate safety policy and permitting exemptions to the safety policy for fully-vaccinated employees and employees who may need an accommodation may continue to be good policy so long as doing so maintains a safe workplace. A culture of respect in the workplace means employees respect their coworkers’ choices even if they do not agree with them and that employees should follow the employer’s safety policies to protect themselves and their coworkers.
Can employers fire anyone who refuses to return to the work?
Generally, an employer can terminate an employee, with or without cause, if the relationship is "at will." But there are public policy exceptions to the at-will doctrine in many states, and other possible job protections, such as FMLA or ADA, could also apply. Some local and state jurisdictions also may have protections that apply, so don't overlook research in this area.
If an employee refuses to return to work, the reason for the refusal is the paramount issue. Simply being fearful of the virus, without some other justification for refusing to return, likely won't spare an employee from adverse action.
For those employees asking for an accommodation due to a disability covered by the ADA, handle it like any other request and enter the interactive process.
If an accommodation allowing remote work isn't possible, your organization may want first to consider an unpaid leave of absence with termination being a last resort. Should you decide to offer an unpaid leave of absence, make sure the terms are spelled out.
Are employers still required to provide COVID-19-related leave (paid or unpaid)?
No current federal law requires employers to provide paid leave because of COVID-19-related illness of the employee or family member. The Families First Coronavirus Response Act (FFCRA) provisions required covered employers to provide employees with paid sick and expanded family and medical leave for COVID-19-related reasons between April 1, 2020, and December 31, 2020.
While the requirement under FFCRA expired, if employers voluntarily provide paid leave related to COVID-19 between January 1, 2021, and September 30, 2021, they may claim employer tax credits. Because employers may seek reimbursement through tax credits for the paid leave, your organization should consider voluntarily providing it.
Note that some states legislated paid leave for employees affected by COVID-19. Always be sure to check local and state jurisdictions regarding possible mandated leaves.
Must an employer provide an accommodation just because employees say they fear for a vulnerable family member if they come back to work and are exposed?
The ADA doesn't protect workers who live with someone disabled and potentially at higher risk. Given pandemic-related anxiety and variants making even some vaccinated people ill, consider trying to find an accommodation if possible.
For these situations, make sure such policies are consistently applied and spelled out as temporary. You may want to have a written remote work agreement and include a monthly review to determine if the accommodation is still necessary.