Employers Weigh Myriad Rules as Workers Return

As workers migrate back to their workplaces, they will often return to an environment fundamentally changed from the one they left so many months ago. But while most long term changes are yet to be determined, there is plenty in the short term to keep employers and workers alike on their toes.

If You Call Them, Will They Come?

One question is whether workers will return to their workplace at all. According to a recent Prudential survey, 87 percent of workers who have been working remotely since the pandemic began say they prefer to continue working at home at least one day a week after economies open back up. Of all workers, 68 percent said they support their jobs turning to a hybrid home/office model.

For some it might not be negotiable. A recent Morning Consult survey of 1,000 U.S. workers conducted for Bloomberg showed that 39 percent would consider quitting rather than returning to the office. Among Millennial and Generation Z workers the figure is almost 50 percent.

Fear of COVID exposure isn’t the main reason why they feel that way. For 84 percent of respondents, avoiding a commute topped their motivation to work from home. About 70 percent say they are more productive working remotely.

Those who would rather quit than commute might not be just talking out of school. In a recent article for Forbes, remote work advocate Ashira Prossak said the practice is actually as good for employers as it is for workers, allowing them to “tap into a much larger talent pool” and making the company itself “the most important factor in attracting talent, not where it’s located.”

She notes other benefits as well, including reduced need for office space and benefits to the environment.

Not everyone agrees. Some surveys suggest workers actually want to have more separation between their work and home lives. Others note the potential loss of mentoring and other interactions that often happen spontaneously in the workplace, and the loss of vitality in cities that depend on a vibrant downtown business culture.

Like many people, Oregon resident Julie Mentzer has been working from her Portland home exclusively for most of the pandemic. But her company, the environmental mitigation solutions provider Wildlands, must soon decide whether to renew the lease on its current office space and, if so, whether the staff will be coming back to that location full time.

Mentzer has mixed feelings about that possibility.

“I do miss the concentration that a dedicated office affords while not having the distraction of chores,” she says.

But she also has two toddlers and a teenager at home, and their well-being is now top of mind as well. She is hoping to split time between the home and office and says her company has so far been extremely supportive of those needs. She is grateful for that, knowing that many workers are not so fortunate. But if at some point she is required to be back in the office full time, she also may be forced to explore other options.

“If I’ve realized anything during the pandemic, it’s that some places really value families and some places see them as an inconvenience, at best,” she says.

If They Come, Will They Have to Wear Masks?

It depends. According to guidelines issued by the federal Centers for Disease Control (CDC) in May, fully vaccinated workers do not have to wear masks or maintain social distance when they return to the workplace, while partially or unvaccinated workers will be required to do so.

The key sentence from the CDC guidance for most HR people is this: “except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidance.”  

Most states have amended their mask mandates to adhere to the CDC guidelines, though at this writing at least 15 states still impose a statewide mandate for unvaccinated residents. Conversely, Arizona, Arkansas, Florida, Iowa, South Carolina, Tennessee and Texas have either rescinded or never imposed such mandates, and now also bar local governments from imposing their own.

Few states have supported COVID mitigation efforts as widely as California, which said it would adhere to the CDC guidelines in ending its statewide mask mandate on June 15^th. But then the California Division of Occupational Safety and Health (Cal-OSHA) surprisingly issued its own mask rules requiring most workers to keep their masks on, vaccinated or not, unless every other worker was also vaccinated.

The rules did not apply to customers, however, which people like Katie Hansen, senior legislative director for the California Restaurant Association, said would only sew confusion for workers and employers alike.

“A fully vaccinated server could work a lunch shift at a restaurant...and then go out to dinner with their family or friends at the same restaurant in the evening and not be required to wear a mask, even though they had to wear a mask earlier in the day while at work,” she said during a Cal-OSHA hearing on the issue.

It all drew intense pushback from the business community, and state officials later clarified that fully vaccinated people would still have to wear masks at places like public transportation hubs, health care facilities and K-12 schools, but it would be up to business owners whether to require customers to wear masks.

Cal-OSHA followed suit, revoking the new rules in an emergency meeting last Wednesday. But the situation is hardly resolved. The agency is set to meet again this week to consider yet another set of guidelines that will go into effect on June. 28^th. 

Vaccination Clarification

According to guidance from the Equal Employment Opportunity Commission (EEOC)issued in May, an employer may require workers to be vaccinated as a condition of employment, presuming that mandate is “job-related and consistent with business necessity” or justified by a “direct threat” to the workforce. But even than there are several exceptions to the rule.

For one, employers have to provide a reasonable accommodation to workers who reject vaccination on either religious or verified medical grounds in accordance with the Americans with Disabilities Act and the Civil Rights Act of 1964.

Employers who impose a mandate must also make sure they do so in a non-discriminatory manner and keep in mind that “some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.”

The potential for getting crossways with all this could keep the companies that mandate vaccinations to a minimum.

“I think that the fact that it takes the E.E.O.C. several pages of notes to talk about all the steps you need to take to reasonably accommodate someone who has a disability or a religious reason why they can’t get a vaccine is one of the reasons why employers might still choose not to mandate,” Douglas Brayley, an employment lawyer at Ropes & Gray LLP in New York, told the New York Times.

Conversely, the EEOC also said that employers who choose the carrot over the stick are free to incentivize their workers to get vaccinated as long as those incentives are not “coercive.” Alas, they did not define what constitutes coercion, prompting a statement from commission chair Charlotte Burrows that the agency would “continue to clarify and update our COVID-19 technical assistance to ensure that we are providing the public with clear, easy to understand, and helpful information.”

Another key aspect of the EEOC guidance is the clarification that employers can indeed ask a worker to provide proof of their vaccination status. Contrary to claims from some factions, that is not a violation of the Health Insurance Portability and Accountability Act (HIPAA). 

It is also not a HIPAA violation for workers to ask their colleagues about their vaccination status, though those individuals are not legally required to answer. Or for that matter, to answer the question truthfully.

All of which underscores what for many people is the real issue – trust. To that end, the EEOC guidance notes that employers must also provide reasonable accommodations to fully vaccinated workers who do not want to be in close quarters with unvaccinated colleagues.

Spiegel says she understands the hesitation many feel going back to a crowded, enclosed environment.

“I’m fully vaccinated,” she says. “But I’m very aware that may only protect me from getting a very bad case. So I’m not sure how comfortable I am being around a large number of people who I’m not sure have also done everything they can to protect themselves from this disease.”

But the need for human connection is likely to win out over those concerns.

“Humans need human interaction,” says Eva Spiegel, a communications consultant in California. “Isolation is not good for the soul.”  

-- By RICH EHISEN

Vaccination Discrimination Bills Introduced Across Country

Legislatures in at least 18 states have introduced bills this year prohibiting employers from requiring vaccinations or discriminating against employees or potential employees because of their vaccination status, according to State Net’s legislative tracking system. Two of those states, Montana (HB 702) and Texas (SB 968), have enacted such measures.