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Can Employers Force You to Return to Work?

As soon as the COVID-19 vaccines became available, vaccination rates rose quickly across the country and then leveled off as more people became vaccinated and the perceived risk was reduced despite the rise of infections caused by the delta variant. We now find ourselves entering unknown territory as it is unclear how long the pandemic and the disruption will last.

The COVID-19 pandemic has upended our routines and lifestyles. Large, medium, and small businesses were forced to reevaluate how to operate under strict COVID-19 conditions; including social distancing and stay-at-home orders. Working from home became the new normal for all but a few key service providers and essential workers.

Now that almost half of the US population is fully vaccinated, many of the restrictions imposed at the height of the pandemic have been lifted and some semblance of normality has returned to American society. As people become more comfortable gathering in groups and taking advantage of the reopening of businesses, shops, and entertainment venues, more employers are considering recalling their employees back to the office with necessary safety measures in place.

Before returning to the office, several questions and considerations should be considered:

  • What rights/responsibilities do employers have?
  • What rights/responsibilities do employees have?
  • What concerns do employees have?
  • What can employers do to make this transition as smooth as possible?

 

As employers begin to evaluate how to safely re-open offices and workspaces, it is important to remember that there are numerous national, state, and local employment laws and regulations that must be followed — some of which were suspended and others were bolstered during the pandemic. Therefore, when considering reopening offices, it is important to ensure that the updated laws and regulations are reviewed.

In addition to laws and regulations, the Centers for Disease Control and Prevention (CDC) provides guidelines on social distancing in shared spaces, mask-wearing, and health monitoring. Additionally, large companies, such as PwC and Woodruff Sawyer have provided resources for corporations to consider before reopening.

While some large employers are considering mandating vaccinations and strongly encouraging their employees to return to the office, many smaller businesses are not in a position to do so. Therefore, it is more advisable to encourage employees to return to work, rather than forcing them to do so.

To persuade and encourage employees to return to the office, it will be important to listen to and respond to their fears and concerns. Research shows that employees’ fears are shifting from worrying about the impact of the pandemic and job security to fears and anxiety about the social aspects of an in-person workplace. The reasons for fear and anxiety are diverse and range from social anxiety due to isolation for an extended period, to concerns about the overall safety of the work environment.

When employers acknowledge the worries of their employees, it will not only encourage employees to feel comfortable coming back to work, but it will also create a positive and trusting workplace environment. One of the first steps to re-opening the workplace is to reassure employees that safety is the number one priority. It is important to highlight the safety and disinfection precautions that will be put in place. Additionally, outlining expectations about COVID-19 vaccinations, prescreening, testing, temperature checks, and health status, can help prepare employees and make them more comfortable with the transition.

Each company should evaluate the laws and regulations in their jurisdiction to ensure they have the right to ask employees specific and personal questions. There are many publications and articles readily available that outline and answer questions such as:

  • May an employer request information from returning employees about their health?
  • May an employer require returning employees to self-report their health status?
  • May an employer administer a COVID-19 test before permitting employees to enter the workplace?
  • May an employer require returning employees to provide a note from a doctor or other healthcare providers certifying fitness for duty?
  • What steps should an employer take in connection with in-person health screening?

 

Additionally, employers must be transparent and honest about their plans and expectations throughout the transition period. This can limit concerns and anxiety and may encourage those who may be hesitant to return to the workplace.

Employment and workplace rights and responsibilities generally favor employers, who in most cases, can require employees to meet certain requirements before returning to an in-person work model. Many media outlets, such as The Washington Times, NPR, and The New York Times have outlined that employers can ask their employees questions about their vaccination status and in some cases, can require vaccinations.

As the COVID-19 pandemic continues to evolve, we are learning how to mitigate its spread in the workplace. Therefore, employers and employees need to understand their rights and responsibilities so that they can effectively transition to an in-person workforce.

Companies must evaluate what tools they have and which ones they need to acquire to build a safe and sustainable workforce during these uncertain times. Additionally, creating a return-to-work plan and guidelines that outline the necessary steps and processes will be critical to maintaining a safe and responsible work environment.

AM LLC is currently working nationwide with multiple states and public health agencies on testing, contact tracing, and vaccination programs. Counties, states, or K-12 partners that are interested in partnering with AM for COVID-19 mitigation support should contact Dr. Christopher K Orlea at c.orlea@amllc.co.

 

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