First of all, I hope this headline isn’t too negative. God knows that’s the last thing you need in 2020. Yet, this blog can’t escape the reality of the moment, nor should it. We are here to help you think through everything that could help or hinder you going remote. America is deeply in a pandemic, very close to Election Day, while immersed in a long-overdue awakening about racial justice. If you think that these huge, national events don’t shift individual behavior and stress relationships, you have never gone home for Thanksgiving. Here we are: excited to push for a healthy, productive, and profitable remote office, but mindful that there are forces around us that constantly pull us backwards. What happens when your people resist your changes, or ignore them?
One of your managers makes jokes on her Facebook feed about masks, scare tactics, and alarmists. You receive a complaint from an employee. What do you do? That depends. If you are a private company, your employees don’t have free speech. However, they have some right to speech beyond those set forth in the Constitution. They have the right under the National Labor Relations Act to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. They have the right in certain states (California, Colorado, Louisiana, and New York) to engage in political activity. Have they violated your Code of Conduct? Perhaps. Can you retrieve their password to investigate what they are saying? Not so fast. They have a right in other states (California, Colorado, Illinois, and 23 others) to keep that information private.
There may be little you can do, but you must do something. When you receive a complaint, investigate it. Ask questions of the person who complained, collect witness statements, and talk to the alleged offender. Has she engaged in bullying prohibited by your company? Has she said anything that qualifies as discrimination or harassment? A word to the wise: while you must react to a complaint, avoid proactive investigations into the private social media communications of your employees. For one thing, that’s a lot of work. Additionally, monitoring their life in the cloud is an inefficient way to protect your culture and a bad way to pump up morale.
“The Corner Cutter”
You have carefully followed CDC and state health department guidelines to keep your team safe. Primarily, by encouraging employees who can work from home to stay at home. What do you do if faced with a supervisor who asks his direct reports to meet him in person? Are you liable for his actions if an in-person meeting results in an employee contracting COVID-19 and dying? Maybe. While the Senate continues to debate whether liability shields for businesses who spread COVID-19 are a good thing or not, they are actually not yet a thing. We have years to see how the courts treat (and define) on-the-job injuries in the COVID-19 era.
Pursuant to OSHA, employees “who exercise supervisory functions shall, to the extent of their authority, furnish employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Is your corner cutter creating a recognized hazard by calling a meeting? Once again, the answer is maybe. OSHA requires employers to assess occupational hazards to which their workers may be exposed. A number of factors, including the nature of industry, an individuals’ role, and the working environment must be assessed. The point: your company must not breach protocol at the whim of a supervisor. Remind your leaders to seek approval for any arrangement that bends or ignores safety rules, and discipline those who do not comply.
A portion of your office staff needs to go into the office on a staggered basis. You are not a healthcare provider or even in the healthcare industry, but you have encouraged your employees to get their flu shots. Officials are worried about a “twindemic” this season, and you are ready to take any action you can to mitigate risk. An employee tells you she won’t get vaccinated. What do you do? Please don’t take an adverse action against the employee (including disciplining, demoting, or terminating employment) because of what you deem to be mere intransigence. You need to dig deeper.
Back in March 2020, the EEOC updated its guidance on compliance with the ADA during a pandemic. First issued during the H1N1 crisis of 2009, the document provides workplace strategies “in a manner that is consistent with the ADA and with current CDC and state/local guidance for keeping workplaces safe during the COVID-19 pandemic.” In a Q&A, the EEOC makes clear that, for employers subject to the ADA and Title VII (those with 15 employees or more), mandatory vaccines are always subject to exemption based on federal law:
Q: May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?
A: No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).
Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.
Competing forces will dictate whether you decide to mandate vaccines as the flu makes its debut. It may be that your workforce, your customers, or your landlord make the decision for you; perhaps the pandemic’s progression will change CDC and health department recommendations and so too the guidance of the EEOC. As but one example, as of March 17, 2020, the EEOC currently permits employers to take the body temperatures of employees (typically a medical examination prohibited by the ADA) due to precautions issued by the CDC and state and local health authorities to stop community spread. How could the course of COVID-19 change guidance going forward? It is not clear. However, the EEOC has recently reminded employers to make reasonable efforts to accommodate sincerely held religious beliefs and disabilities when it comes to donning Personal Protective Equipment and submitting to screening procedures. Should a vaccine for COVID-19 become available, learning more about how the virus spreads may influence the judiciary’s assessment of whether refusing one is an undue burden on a specific workplace. For now, however, don’t impose a mandate without exception for an old fashioned flu vaccine. Remember to promptly engage in the interactive process when faced with a religious objection or disability-related concern.