Earlier this summer with restrictions beginning to lift, and employees returning to the workplace the overall outlook was very positive. Yet, the Delta variant seems to have put a kink into those well-laid plans. Once again, employers have been stuck in limbo, figuring out their best way of conducting business in a world where the virus continues on a trajectory of growth. Companies are now in the process of implementing vaccination policies, mask mandates, and other necessary safety requirements for workers who return to the office.
The biggest challenge for employers is determining the most appropriate actions to take concerning mandating policies for their employees. Do they require mask wearing for all employees who return to the office? Only for those non-vaccinated individuals? Do they mandate vaccinations for all employees and implement a policy on vaccination requirements? What do they do if an employee refuses on both counts?
Many potential scenarios require serious thought, decision-making, implementation, and follow-through.
Mask Wearing Mandates in the Office
The number of changes to public policies and the reversal of decisions by public health officials on mask-wearing requirements in public indoor spaces is enough to make us dizzy. Keeping up with these evolving recommendations has become a daily task with frequently changing information. Some states have relaxed their requirements over the summer and some have even banned mask mandates just to turn around and implement them yet again. So what is a business to do?
According to an article in SHRM, “Employment law attorneys have said such bans generally don’t affect private businesses.” However, although many states have put the onus on the business to determine and implement their prevention measures, organizations must be careful not to willfully disregard the rules that local and state jurisdictions have implemented.
While most states provide employers the freedom to implement measures suitable for their workplaces, organizations should strongly consider and pay heed to the recommendations given by the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) to determine what is reasonable and prudent.
Responding to an Employee’s Refusal to Wear a Mask or Return to the Office
With so much uncertainty revolving around COVID-19, employees are undoubtedly overwhelmed and concerned for the health and the well-being of themselves and their families. Which may result in a refusal to return to the workplace if the organization has mandated this requirement.
There may be many underlying reasons for an employee’s refusal to return onsite during the pandemic. The employer’s responsibility is to first and foremost, ensure a safe work environment for the employee. To do this, as with any accommodation, the employer should first become familiar with OSHA’s Worker Safety Guidance recently updated earlier this year. Their website provides a list of tasks an employer is responsible for to safeguard the workplace.
Secondarily, the employer should engage in open dialogue related to the employee’s concerns and needs, while considering viable options for their safe return to the workplace. Flexibility and accommodating a simple request could go a long way in getting an employee back into the job site or office.
Consideration of Vaccination Policies
Cities and states, along with businesses nationwide, have been considering and implementing organization-wide vaccination policies for their employees.
Recently, the city of Denver, Colorado mandated vaccinations for certain public employees, as have many other cities. CNN has recently fired several employees for violating their mandatory vaccination policy. The question becomes, then, how much leeway does the employer have to take these measures and how far can an employer take the policy?
It seems in general, an employer has the right to implement a zero-tolerance policy to mandate vaccinations, which allows an employer to require employees to be vaccinated, or to undergo regular testing, or to show proof of vaccinations within a specified period or be fired. The only exception relates to reasonable disability-related or religious accommodations. However, local government laws may override this. Therefore, the employer must verify with the states they operate whether a vaccination mandate is legal and can be upheld in court if contested.
Overall, when dealing with worker’s health and safety during the time of COVID-19, employers have a lot on their plate and quite a bit of freedom in choosing the best course of action for their business, employees, and the workplace.
For help and guidance on COVID-19 best practices or to implement a voluntary or involuntary vaccination policy, and to update your employee handbook Contact our HR Consultants, we can assist your organization navigate these ever-changing guidelines.