Heads Up: Mandated Vaccinations, Paid Time Off, and more COVID-19 Questions from Managers
Video Script: Return to Work And Vaccinations
My name is Russell Lookadoo, President and Chief Strategist for HRchitecture. I am the HR Guy for small businesses. My firm exists to leverage my expertise and experience in Human Resources so that small business owner can achieve their dreams through effective use of their team.
Last spring with no warning many of us shut down our workplaces and sent people to work at home. Without any plan or instructions, we rapidly adapted.
Everyone is wanting the COVID pandemic to go away but it persists Now businesses are reopening and wanting their team to return to work. With the new variants, there are some questions regarding what employers can and cannot do regarding requiring a return to work and vaccinations.
This is a constantly shifting landscape both in practical and legal terms and I am not offering legal advice. This week one of the vaccinations was approved beyond emergency use and approval of the other vaccinations is pending.
I strongly recommend that you have a written plan and a communication strategy that is clear, consistent and delivered in a manner so that your entire team is aware of the policy. Your leadership team needs to be in 100% agreement with this and administers it without variation.
Let's look at some questions
Q1: Can I require my employees to return to the workplace?
A1: Unequivocally yes. An important next question is should I require my team to return to the workplace?
From a practical standpoint the toothpaste is out of the tube and the idea of going back to pre-pandemic standards may be wishful thinking. As many as 2/3 of the workforce has indicated a desire to have some type of flexible or hybrid arrangement. When possible, this should be not only encouraged but proactively offered in a very competitive labor market.
Q2: What if an employee refuses to return to work?
A2: Unless you are constrained by a collective bargaining agreement or local regulations there is no regulatory prohibitions to requiring the return to work. To do so however you do risk losing key players. While Unemployment Insurance requirements differ by state, generally you can contest claims resulting from a refusal of a reasonable offer of employment.
The implications of refusal must be addressed in your written policy Your leadership team should clearly understand that the policy needs to be consistently administered. Therefore, a top performer would need to be terminated as well as an underperformer that is in the same job. Certainly, there cannot be any disparate impact on any protected class.
Q3: Can an employer mandate vaccination as a condition of employment?
A3: Yes. The EEOC, OSHA, DOJ and FDA have addressed that vaccination status can be required and that the employees’ status alone is not protected personal health information. However, it is confidential information and should only be shared for those with a “need to know”.
Consider the pros and cons of a mandate. On the pro mandate side, the law does require employers to provide a safe workplace. An across-the-board mandate is simple consistent and the safest possible position to take.
On the negative side, turnover is a high probability. You must have in place an accommodation process if the expressed reason for not being vaccinated is disability-related or a sincerely held religious belief.
A simple yes or no question is all that should be asked by anyone not directly involved in an accommodation process. Only trained professionals should undergo this accommodation process.
Q4: Do I have to pay for the vaccination, time off to get vaccinated and recovery time?
A4: If mandatory all expenses, including paid time off, and milage should be covered.
Q5: Can an employer encourage or offer rewards for vaccination?
A5: Yes, this encouragement may include incentives or consequences. The only caveats are the incentives cannot be coercive or onerous and the consequences be administered consistently.
Q6: What do I do with unvaccinated employees?
A6: A policy that encourages vaccination without a requirement for vaccination creates another set of challenges. You may create a caste system of vaccinated versus unvaccinated.
You may require the unvaccinated to be tested weekly, wear a mask and social distance. Vaccinated employees do not have to meet those tests. This difference is legal and if implemented properly is nondiscriminatory.
Vaccinated employees may be uncomfortable with unvaccinated coworkers. Employees may disparage those with the other status. Leaders must reinforce the fact that any disagreements must be civil and not impede the work being performed. Additionally, bullying should simply not be permitted.
We continue to navigate uncharted waters balancing business survival and providing a safe workplace. Leaders need to listen, and be nimble, clear, and compassionate.
As the HR Guy, I am available and ready to work with you to navigate and strategize about your return-to-work strategy so you can achieve your dreams for you and your business.
Schedule your first appointment with me for free: https://calendly.com/thehrguy/