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With vaccination rates ticking up and a semblance of normalcy drawing near, businesses across the US are returning to the office. They’re also calling up their lawyers to find out how to do it without running afoul of labor and employment laws.
Contradicting state and federal guidelines and individual company cultures make crafting return-to-office policies tricky, according to lawyers who spoke with Insider.
“For as many different clients as I have, there are that many different views,” said Clare Gallagher, vice chair of Eckert Seamans’ labor and employment practice.
Three labor and employment lawyers told Insider that they’ve been fielding multiple calls a day as employers seek advice about the distinctions they can make between vaccinated and unvaccinated workers, restarting business travel, and vaccination incentives for employees.
Here’s what they had to say about some of the key legal risks businesses should be considering.
Separating workers into ‘vaccinated’ and ‘unvaccinated’ groups could lead to discrimination and harassment
One of the most pressing questions on clients’ minds is if they can require employees to be vaccinated before returning to work, lawyers told Insider.
Generally, an employer can’t be sued for mandating that only vaccinated workers can work in-person, since a person’s vaccination status isn’t a protected class, like race or gender, said Jimmy Robinson, managing shareholder at the L&E firm Ogletree Deakins’s Richmond office.
But there’s a twist. While they can mandate vaccinations for those coming back to the office, employers have to at least engage in discussions to make accommodations for workers who have opted to not get vaccinated due to religious or disability reasons under the Americans with Disabilities Act. An employer could be sued for discrimination if they refuse to let such persons work in-person or perform certain tasks like travel for business. Certain employees might be able to make the case that they’re being treated differently because of their religion or disability, said Karla Grossenbacher, chair of Seyfarth Shaw’s labor and employment practice in Washington, DC.
“A lot of people are taking another look again at the decision about whether or not to mandate the vaccine,” said Grossenbacher.
Physically distinguishing between vaccinated and unvaccinated workers is another sticky spot for employers.
“Let’s say a state follows the CDC’s approach that vaccination people can take their masks off inside. How do employers implement that? How do they know someone walking around in the hallway without a mask really is vaccinated?” said Grossenbacher. “Do they have to wear special buttons, bracelets, or t-shirts? It’s all very impractical in the workplace.”
While employers can inquire about someone’s vaccination status — asking about the reasons behind that decision would be an invasion of privacy — separating those who are vaccinated and unvaccinated can also have a “terrible” impact on company morale, according to Ogletree’s Robinson.
“You’re going to have a divided workforce and all the problems that come with that: the us versus them, people making comments,” added Grossenbacher. “Even if there is a way to visually tell whether someone is vaccinated or not, it could lead to harassment claims.”
Finding ways to incentivize employees to get vaccinated can help overcome these thorny issues and minimize differential treatment of the workforce, said Robinson. At the end of May, the Equal Employment Opportunity Commission said employers can provide vaccine incentives, though they should be wary of crossing the line into coercion.
Companies need to write clear policies to help employees navigate competing guidelines
Labor and employment lawyers are also helping clients navigate the jumble of federal, state, and local guidelines — many of which have contradictions.
“I’m on the phone 10 times a day with various clients about this question,” said Robinson. “It’s clear as mud. The real challenge is the competing guidelines.”
For instance, the CDC recently issued guidance that vaccinated individuals don’t have to wear masks indoors. But the Occupational Safety and Health Administration (OSHA) and state equivalents have been slower to embrace the change, leaving it up to employers to make their own mask-wearing decisions for now.
“And, on top of that, companies have their own guidelines and requirements that are oftentimes more severe and stricter than the CDC, governors’ executive orders, and state regulatory OSHA guidelines,” said Robinson. Things are even more complicated for businesses with offices in multiple states, since they must consider each jurisdiction’s regulations.
Ultimately, the best way to balance the competing guidelines is for employers to focus on state and local rules, prioritize company culture, and ensure they’re protecting their workforce.
“Be consistent across the board, and look at downstream effects of policies on both legal claims, retention of employees, and accommodating those who need it,” said Gallagher of Eckert Seamans.