Returning to Work Safety and Legally

A recent study by The Conference Board shows that 31% of employees are not comfortable returning to work and 39% are only moderately comfortable. So how can employers ensure that they address employee concerns as they create guidelines for returning to the office while also ensuring those guidelines are compliant with state and federal regulations? 

The Canadian Centre for Occupational Health and Safety created a Hierarchy of Controls that addresses five focus areas designed to help control the spread of Covid-19 as organizations return to the office, ordering protocols from most effective to least effective at containing the spread of the virus. 

 

The Biden Administration had hoped to have 70% of Americans vaccinated by July 4th, however, that number has fallen far short at just 47.9%. Alabama is ranked 50th among the states plus D.C. with only 32.7% of the population fully vaccinated. Given the hesitation with getting vaccinated, it has led to a lot of questions from employers on how they can encourage employees to get the vaccination, how they can verify vaccination status, and whether or not they can mandate it. 

  • Can I mandate that employees get the Covid-19 vaccination? Yes, employers can opt to mandate vaccination. However, employers have to provide for ADA and religious accommodations. 
  • Can I require employees to show proof of vaccination? Yes, employers can require proof of vaccination. If you maintain a copy of proof of vaccination, make sure the documentation is maintained in the employee’s medical file and not their personnel file. If an employee loses their vaccination card, they can request proof of vaccination from the provider or by contacting the Alabama Health Department who maintains a vaccination database. 
  • Can I ask an employee why they are not vaccinated? Yes, however, I advise against it. Doing so could open you up to discrimination liability under ADA, ADEA, GINA, and Title VII. 
  • Can I create a separate mask requirement for employees who are vaccinated versus employees who are not? Yes, you can have mask requirements based on vaccination status, as well as other classifications that may make sense for your organization such as work location or department. However, creating your mask policy should include a statement that employees cannot question or confront employees who are/are not vaccinated and concerns regarding the wearing of masks should be directed to management/HR, not directly to the employee. Also, keep in mind that persons who have received their second dose of the vaccine are not considered fully vaccinated until at least two weeks after receiving the final dose. Vaccinated individuals can still contract Covid-19, however, their symptoms should be much milder and they can still pass Covid to others. 

The key to easing employee concerns over returning to the office is to communicate. Be sure that employees are aware of the return-to-work policy implemented, and are able to ask questions, present concerns, and provide feedback or suggestions. Ensure that they know what steps and actions you have taken in the Hierarchy of Controls to help protect them. If you’ve inspected the ventilation system or had it cleaned, tell them. If you have added sanitizer stations or replaced bathroom fixtures with sensor-activated fixtures, tell them. You can create all of the possible controls and make all of the possible improvements to help protect your employees, but it will not ease their minds if they have no idea that you did it. 

As you prepare to return to work, what controls and policies are you considering? 

Lorrie Coffey

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