This past year has been a challenging year for nearly everyone across the country and across the globe. Now that we are seeing people get vaccinated, along with the COVID-19 numbers declining in most states, more businesses are beginning to open their doors and return people to the workplace. This article will address some key points to consider when welcoming employees back to the workplace using the three C’s.
An employer’s number one objective should be to keep employees safe, and this should be the highest priority when returning employees to work. As you return people back into the office, you may find that there are some logistical considerations with office space in order to facilitate social distancing. Should you have all remote employees return to the workspace, or offer some kind of hybrid solution? Will you test employees for COVID-19? Will you require employees to get vaccinated? If so, do you have to pay for these things? And what about the employees’ time? What happens when employees don’t adhere to the policies set in place? What if employees don’t want to return to work? If you have a unionized workforce, what must you pay special attention to under the Collective Bargaining Agreement? These are just a few questions employers should consider as they begin the return-to-work process.
Create a plan
Returning employees to work should be a deliberate and documented process. The most effective way to do this is to create a plan. The plan should address the questions posed above. There isn’t necessarily a correct answer for any of these questions; it is based on the needs and best practices of the employer. Not only is it a good idea to have a documented plan in place, but OSHA may also require it. Under OSHA, employers are responsible for providing a safe and healthy workplace free from recognized hazards likely to cause death or serious physical harm. The OSHA website says that implementing a workplace COVID-19 Prevention Program is the most effective way to mitigate the spread of COVID-19 at work. An effective plan will include the following elements:
- Assign a point person and/or team who will be responsible for COVID-19 issues on behalf of the employer.
- Perform a hazard assessment to identify potential workplace issues related to COVID-19.
- Establish safety protocols such as when face masks and social distancing are required.
- Establish a system of communicating effectively with employees.
- Educate and train employees on COVID-19 policies and procedures and consequences if they are not followed.
- Provide guidance and any requirements regarding screening, testing and vaccinations.
- Implement a system to report concerns together with protections against retaliation for such reporting.
Employers should be concerned as they begin bringing employees back to the workplace. There have already been cases filed in the courts for things such as not providing accommodations under the Americans Disability Act (ADA), not providing leave under FMLA and FFCRA, workers’ compensation cases, Fair Labor Standards (FLSA) cases, and OSHA cases. With a myriad of employment laws to consider, it can feel as though you are navigating a minefield. As such, there are a few things employers can do to help mitigate risks. While not all-inclusive, important points to consider while returning employees to the workplace include:
- While “fear” is not considered a disability, research has shown that COVID-19 has exacerbated many mental health conditions such as anxiety, depression, and PTSD. Employers are advised to engage in an interactive conversation with the employee if an employee asks for accommodation. The employer is still permitted to make a decision on whether the accommodation imposes an “undue hardship.”
- Employers may require vaccination for their employees; however, they should be prepared to accommodate those with a medical condition or a sincerely held religious belief. Employees may also be covered under workers’ compensation laws if they have an adverse reaction. Finally, there may be protections for employees who refuse the vaccine because of a safety concern and if it’s a discussion among employees it may be considered a concerted activity.
- While the vaccine is not a medical exam, the questions that are posed prior to the vaccine are considered medical inquiries and subject to ADA standards.
- Employers can ask their employees if they have been vaccinated. They can NOT ask “why not?” Employers want to avoid obtaining additional medical information from employees as they respond, as that could invoke protections under federal or state disability laws.
- There is not a mandated vaccine credential, and many states have banned use of a “vaccine passport” (verification of the vaccine).
- The requirement that employers provide paid sick leave and expanded family and medical leave under the FFCRA expired Dec 31, 2020. The American Rescue Plan Act of 2021 (ARPA) allows small and midsize employers to claim refundable tax credits that reimburse them for the cost of providing paid sick and family leave including leave taken by employees to receive or recover from COVID-19 vaccinations. These credits are available from April 1, 2021 through September 30, 2021. The leave is not mandatory under federal law, but there are a handful of states and cities that have their own leave and vaccine requirements and rules such as California, New York, New Jersey, and Pennsylvania localities.
- Employers should keep in mind that other leave laws still apply, both at a state and local level as well as federal law under the Family Medical Leave Act.
- Employer-required temperature checks or COVID-19 health screenings, COVID-19 testing, and required COVID vaccinations are considered compensable time under the FLSA.
Once an employer has taken the steps prescribed above, it is important to communicate effectively with your employees. Remember this is a human experience, so make sure you are listening to employee concerns. Document everything, follow the required rules and regulations and be prepared to be flexible as you consider employee needs.
Prepared by Holly Young, MA, SPHR, SHRM-SCP
Human Resources Business Consultant