A word on vaccine mandates is appropriate before discussing the CDC’s new guidance: The Equal Employment Opportunity Commissions has stated that employers may require vaccines, as long as the employer makes accommodations for employees with medical or religious reasons not to get the vaccine. A court recently upheld a Houston hospital’s vaccine mandate. But the devil will lie in the details of such a policy. Requiring each employee to get vaccinated will require the employer to obtain and keep a copy of vaccine records, and to field requests from employees for a religious or medical exemption. This is a recordkeeping and liability issue that employers should consider carefully. There are also retention issues: such a mandate is meaningless if the employer is unwilling to terminate an employee who refuses to get a vaccine, but does not have a valid medical or religious reason. In this market, where employers are finding it difficult to hire, that is an important consideration.
Vaccination policies figure significantly in the employer’s masking policies under the CDC’s new guidance. If the employer decides not to mandate vaccines, the issue becomes how to implement a policy that allows vaccinated employees to go without masks. There are options: employers can require proof of vaccination; they can continue to require masks; or employers can operate on an “honor” system. Employers will need to prepare clear policies, for employees to sign, no matter the policy they choose. And, as we all have learned over the past year, this could all change quickly - there are reports that CDC or Pennsylvania may soon lift all masking mandates, and there are warnings of variants or the possibility of a surge that may require employers to return to masking rules. Employers will have to continue to be ready to adapt to those changes with practical, compliant policies.
At least one workplace change seems to have staying power: remote work. Again, there is no legal requirement, or CDC or Pennsylvania guideline (at least at this time) that requires remote work. In some cases, remote work is an appropriate accommodation under the Americans with Disabilities Act. But generally speaking, employers are now presented with a more practical issue - employees have come to expect and prefer remote work. Employees are resisting calls to return to the office, even to the point of resigning in record numbers. Employers will need to provide clear guidance to employees about expectations for return to work, and be ready for the inevitable resistance from employees. Employers and employees may disagree about how effective the employee has been during remote work periods. Often, employers have not documented employee deficient in performance or productivity during the pandemic, and with good reason in unprecedented circumstances. Employers should consider reversing this thinking now and providing clear guidance to remote employees regarding performance issues. In this market, the perk of remote work does present an opportunity to attract employees. Employers will need to have clear policies and expectations regarding remote work, including policies concerning the security of employer information.
The pandemic has trained employers to be ready for change and to create an adaptable workplace. With more changes ahead, and a permanently changed workplace, employers will need to continue those habits, and will need to communicate clearly with employees the applicable policies, procedures and expectations. The employment law attorneys at Antheil Maslow & MacMinn LP can guide employers through these changing times in a way that suits the practical needs of a particular workplace and complies with applicable law.
Patricia C. Collins is a Partner and Employment Law Chair with Antheil Maslow & MacMinn, LLP, based in Doylestown, PA. Her practice focuses primarily on employment, commercial litigation and health care law. Patricia Collins can be c ontacted at 215.230.7500 ext. 126.