A discussion of the major legal issues that are arising as employees return to the workplace, with Lindsey Conrad Kennedy, labor and employment attorney with Eckert Seamans Cherin & Mellott LLC.
The biggest issue concerning the reopening of workplaces is if and when to return to them, Kennedy says. Many employers are struggling with the question of whether to mandate fully in-person offices, allow some form of a hybrid solution, or let employees continue to work remotely indefinitely.
The second big issue is that of vaccines — whether to mandate that employees get them, simply encourage them to do so, or let them make their own decisions. Many employers are preferring to encourage or incentivize employees to get the vaccines and show proof that they did, guided by a new ruling by the Equal Employment Opportunity Commission.
Kennedy recommends that employers ask workers whether they’ve been vaccinated, and take steps to confirm that they have. Employers might be hesitant to pursue that action for fear of being accused to invading workers’ privacy, but they also have a duty to provide all employees with a safe workplace.
Testing for the vaccine is another sensitive issue. Kennedy says employers will continue to require testing as the workforce returns. Imposing a testing requirement is legally acceptable provided that employers pay for the testing and make it easily available. At the same time, in the case of both testing and requiring the vaccine, employers need to allow for some accommodations and exceptions, particularly in the case of a disability or religious belief.
Also expected to be challenging for some employers is convincing workers to return to the office at all. Failure to do so used to be clear grounds for termination, but the issue is less clear now.
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