As more businesses begin to reintegrate employees into their pre-pandemic workplaces, many of our clients have questions regarding return-to-work issues. In this (our first) edition of Funny You Should Ask, we address three questions many of our clients have asked during the past week.
1. As we bring employees back to the office, can we require employees who have not received a coronavirus vaccine to continue working remotely?
Generally, yes. Based on the latest guidance from the Equal Employment Opportunity Commission, an employer may require its employees to get vaccinated as a condition of returning to work. Nevertheless, employers should endeavor to reasonably accommodate employees who cannot get vaccinated due to a disability or due to a sincerely held religious belief. Under those circumstances, remote work may constitute a reasonable accommodation. As always, employers should implement these policies and decisions uniformly to reduce the risk of discrimination claims. Likewise, employers should consult state and local laws to ensure compliance with additional requirements and/or limitations imposed by specific jurisdictions.
2. Do we need to create a separate workspace for employees who do not get the vaccine but need to come into the office?
Generally, no. Employers may require employees who have not received a coronavirus vaccine to continue wearing masks, physical distancing, and related hygiene practices. A more practical approach may be to continue to require all employees to observe these and related safety measures, in accordance with the latest guidance from the Centers for Disease Control, as updated from time to time. This approach alleviates having to identify employees who have not been vaccinated. However, employers should remain nimble enough to adapt their policies to address individualized needs. For example, employees with certain medical conditions may need to continue working remotely or may require other reasonable accommodations.
3. Can we prohibit employees, vaccinated or not, from leaving the state for spring break?
Although federal employment laws do not prohibit such actions in general, employers should avoid dictating how employees spend their time away from work. In addition, some state and local laws may also prevent employers from dictating how or where employees spend their time off. Unless an employee may need to respond to customer calls or otherwise report to specific workplaces, employers should permit employees to use their time off as they please. However, if employees do travel for spring break, an employer may require those employees to be tested or to isolate or work remotely for some time before allowing them to return to the workplace. Keep in mind that state and local laws may impose certain requirements or limitations based on where an individual has travelled, but employers should typically steer clear of dictating where or when employees may travel during their time away from work.
Stay tuned in the coming weeks as we continue to respond to more employment-related questions as part of our Funny You Should Ask series.
If you have questions about your obligations regarding COVID return-to-work issues, contact Rufino Gaytán III or your Husch Blackwell attorney. This information is intended only to provide general information in summary form on legal and business topics of the day. The contents hereof do not constitute legal advice and should not be relied on as such. Specific legal advice should be sought in particular matters.