A recent Fairleigh Dickinson University poll found that just 27% of workers who moved to remote work during the pandemic have gone back to the office. According to panelists from the NJBIZ Discrimination in the Workplace panel discussion hosted on June 29, the shift back to the office is a tricky one.
On June 18, New Jersey hit its goal of fully vaccinating 4.7 million residents 12 days ahead of its deadline. With 54% of the state fully vaccinated and about 75% of the state having received at least one dose, odds are high for employers that while most of their employees are vaccinated, at least some are not.
Without making a decision and putting in your policy that the COVID vaccination is voluntary, employers are opening up their facilities to having three different groups within the office: those who are vaccinated, those who don’t wish to be vaccinated, and those who can’t be vaccinated for medical reasons.
Primepoint LLC HR Specialist Judy Sailer said, “I’ve seen everything from folks changing their facility to meet the needs of their employees, like the plastic shields that they did in schools, to a hybrid schedule … lots of common areas in the organizations I support are empty. Everyone’s still trying to figure out, how do we manage this?”
Masks can be mandated for the unvaccinated and social distancing can still be in place. Saiber LLC member Jennifer O’Connor said the policies she’s writing also note, however, that vaccinated people can also wear masks.
“You can’t question someone’s decision and it’s … not up for discussion, if they choose to wear a mask or choose to vaccinate,” she said.
For businesses that mandate in-person employees get a COVID vaccine if they don’t have any medical issues or religious objection—something they can do, per guidance from the Equal Employment Opportunity Commission—O’Connor said an issue could present itself if they mandate proof of vaccine.
“The danger here is you only want proof of vaccination. You don’t want a call from someone who says I’m not vaccinated because I have XYZ disability. You didn’t ask for that, but now you can’t unknow it,” O’Connor said. “If something comes up with this employee in the future, they now have the opportunity to say ‘everything changed once they knew I was this religion or I have this disability’ and there’s your discrimination suit.”
Creative thinking
Human resources personnel need to get creative to address the challenges that going back to work entails—making sure vaccinated employees feel safe and making sure unvaccinated employees don’t feel discriminated against.
“You can say to an employee, ‘Well you know, we’re going to be doing a bonus but instead of a bonus, how do you feel about one day work at home, not in lieu of a bonus, but maybe a reduced bonus?’ There’s a balancing act that’s going to have to go on,” Nachman, Phulwani, Zimovcak Law Group Managing Partner David Nachman said. “And I think HR is going to have to examine all the different ways they can be creative and introduce this to their staff and hold onto people. Because if people are forced to come to the office, they’re just going to say, ‘I’ll just find another employer.’”
The FDU poll results released in June found that a quarter of those who have shifted to working from home don’t expect to ever come back into the office, and 1 in 5 would prefer never to go back in again. Even in an office setting, though, not all jobs can be done remotely.
And what happens when an employee says, “no, I’m not comfortable coming back in at all?”
During the discussion, Insperity Human Resources Consultant Michael Timmes said that that’s when the interactive process comes into play.
“You have to have discussions to better understand what the expectations are,” he said. “I think it’s also important to look at the job descriptions to see what they’re written like. That’s such a rich area of opportunity to understand and define what’s going on.”
Employers also must take into account what’s transpired over the last 16 months: if someone’s been successful working from home, it’ll be challenging to tell them it’s necessary for them to return to the office to do their job.
“I feel that you have to have that dialogue going back and forth. And I feel like when you have that dialogue, you’re beginning to build trust with people when they see you’re working with them. That goes a long way of perhaps diminishing any risk of potential litigation by having those ongoing discussions,” Timmes added.
