By Rachel Wilson
For many of us, the past fifteen months have involved a lot of time at home. Living rooms have become offices, kitchen islands have become desks, and board rooms have been replaced by breakout rooms. However, as vaccination rates climb and COVID-19 infection rates tumble, many companies are contemplating a return to physical offices. While this is welcome news for some employees who crave the social interaction and change of location associated with going into an office each day, others are already dreading the commute, formal clothes, and high costs of meals and childcare. Unsurprisingly, then, a stark divide has emerged between people who want to return to the office and those who would rather keep teleworking long-term. As a result, HR and legal departments now need to grapple with how to respect different employees’ wishes and needs, while also protecting the workplace community as a whole and ensuring continued business growth and productivity.
From a legal and management perspective, many companies are considering two important questions:
Is it necessary or worthwhile for employees to return to the physical office full-time?
Many companies are currently evaluating whether it is worthwhile to bring employees back at all. More than two-thirds of employers want workers back in the office at least three days a week, but as of May 2021 60% of employees said they would quit their job if forced to come back to the office and only a miniscule 2% wanted to go back full time.[i] Moreover, maintaining an office costs money (for rent, office supplies, maintenance, etc.). As a result, deciding whether to bring employees back to the office is an important consideration from both an economic and management perspective.
Physical presence is an office is no longer a prerequisite to professional productivity, as the past year of near-exclusive telework has shown. Therefore, requiring employees to come back just because that’s how it used to be is unlikely to go over well and could cause more harm than good. Instead, Gallup suggests company leaders focus on the “4 Cs” to create a value proposition that encourages workers to want to come back. In particular, employers should develop policies that: (1) foster connection (e.g., having lunch together), (2) encourage collaboration between both on-site employees and between on-site and remote workers, (3) promote creativity, and (4) help define & develop the workplace culture (i.e., how employees will interact).[ii]
Alternatively, if there is no particular reason why employees need to come back to the office, consider reducing or eliminating the in-office requirement all together and allowing individual teams or employees to decide what works best for them. In most organizations it will also be feasible to have some employees come back to the office while allowing others to remain partially or completely virtual. However, to avoid any potential discrimination claims, any hybrid workplace should develop detailed policies that ensure remote workers are treated the same as on-site workers.
Can an employer require that all on-site employees receive the COVID-19 vaccine?
Employers that have already decided to bring workers back to the office are also debating another important question: whether or not to require proof of COVID-19 vaccination. Research shows that vaccines effectively prevent symptomatic infections, and a growing body of research indicates that the vaccines effectively reduce asymptomatic infections and transmission. Therefore, the CDC recommends that all individuals twelve and over receive one of the three, FDA-approved COVID-19 vaccines.[iii] However, some eligible individuals will not receive a vaccine either due to personal preference or because they have a medical condition or sincerely held religious belief that prevents them from receiving the injection. This puts employers in the difficult position of wanting to protect the health and wellbeing of the workforce as a whole, but also needing to decide how to handle unvaccinated employees.
Under federal equal employment opportunity (“EEO”) laws, including the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”), employers can require employees entering the physical workspace to show proof of vaccination against COVID-19 as long as the company also provides reasonable accommodation to employees who seek exemption for a disability, pregnancy, or a sincerely held religious belief. However, the U.S. Equal Employment Opportunity Commission (“EEOC”) does not recommend requiring vaccinations because requiring vaccinations could lead to legal quagmire. Some potential sources of tension include the inequitable vaccine rollout, the vaccines only having emergency use certification, and the information solicited as part of the vaccines’ pre-screening questionnaire for the vaccine.
Due to ongoing barriers impacting access and application of the COVID-19 vaccine, individuals in a particular class may be disproportionately affected by mandatory vaccination requirements. This is a potential problem for employers under the ADA and Age Discrimination in Employment Act (“ADEA”), which together prohibit policies that have a disparate impact on employees based on race, color, religion, sex, national origin, or age. Moreover, the fact that the current COVID-19 vaccines only have emergency use authorization, not full FDA authorization, gives some people pause and makes mandatory vaccination requirements more controversial, especially for groups underrepresented in clinical trials (e.g., pregnant women).
Also, employers must zealously comply with all EEO laws, so it is vital that any company that chooses to require COVID-19 vaccination also implements policies and procedures for employees who wish to seek exemption under the ADA or Title VII. If a particular employee cannot be vaccinated because of a disability but the company still wants to require vaccination, the employer must show that the employee’s lack of vaccination causes a “direct threat” to others and that reasonable accommodation would mitigate this threat. The employer and employee then work together to determine the best accommodation that will allow the employee to perform their job functions but will not place an undue burden on the employer. The two parties should also work together to find appropriate accommodation if an employee seeks vaccination exemption under Title VII (e.g., for a sincerely held religious belief or pregnancy). Appropriate accommodations could include asking the unvaccinated employee(s) to wear a mask, work staggered shifts, continue to telework, modify job duties, or remain isolated from other workers. Strong, predetermined policies and procedures are critical to ensure there is not disparate treatment among exempted employees in violation of EEO laws. Vaccination status or exemption is health information under the ADA, so employers need to keep it confidential.
However, instead of requiring vaccination the EEOC recommends employers simply encourage employees and their family members to be vaccinated. Some strategies for community encouragement could include:
- Providing accessible information about COVID-19, the benefits of vaccines, and proactively addressing common questions and concerns (e.g., informing employees that vaccines are free for anyone in the USA 12 and over)
- Helping employees find nearby vaccination sites
- English: go to vaccines.gov or text a zip code to GETVAX (438829)
- Spanish: go to vacunas.gov or text a zip code to VACUNA (822862)
- Offering incentives, either positive or negative, for voluntary provision of proof of vaccination. Note, however, that incentives cannot be so substantial as to constitute coercion.
For specific, up-to-date guidance about COVID-19 and relevant EEO laws, visit the EEOC page here.
Have more questions about the legalities of return to office policies, or questions about nonprofit governance in general? The Colorado Nonprofit Level Center can help! Contact us today for help with drafting policies, review of proposed policies, or other legal or governance questions.