While many employees are celebrating the impending return of in-person work, their employers’ focus is on ensuring a smooth transition.
Jon Snead, senior vice president and business consultant at Lockton Companies’ Grand Rapids office, recently spoke to the Business Journal about the challenges of crafting a return-to-office strategy and shared advice for employers to ensure they are compliant with regulations and minimizing any potential risks.
Lockton is a global independent insurance brokerage. Snead, who was hired in January, has extensive human resources and employee benefits experience, as well as a wealth of knowledge in many industries.
The firm was up to its elbows all year in discussions with clients and other peer industry players about their plans for returning to in-person work, whether in a phased/staggered approach, via a hybrid remote/in-person plan, or some other target goal. In mid-May, Gov. Gretchen Whitmer had just announced the all-clear for in-person office work to resume May 24, but Snead said most workplaces he is in touch with were already having these conversations with their employees.
“Employers, especially out of the human resource department, they have been constantly communicating with their employees throughout this year or year-plus of being remote on what their plans were,” Snead said. “… The employees have had questions throughout (the year) — ‘Are we ever coming back? When are we coming back? What will it look like?’ The human resource groups have done a really good job keeping employees informed throughout the process and obviously monitoring what is occurring both from the CDC, the Michigan health department (and) their county health department. So, when you ask the HR people about this added piece of their job, I think they would tell you that their communication to the employees has really been more focused and more frequent than pre-COVID.”
While a sizeable portion of the West Michigan workforce — in industries such as health care and manufacturing — were deemed essential and coped with COVID-19 in person by implementing PPE, social distancing, rearranged floor plans and other tactics, the office-based employers shifted to remote work early on but always knew they would be coming back at some point.
Snead said it’s clear most workplaces that shifted to remote work at the onset of COVID-19 will offer more flexibility and hybrid remote/in-person work options moving forward for those who want it. But he said Lockton advises employers to be careful to create a culture where opportunities for engagement and innovation are consistently offered across the board, so as not to create rifts between employees who are offsite versus onsite.
“It’s (about) making sure that everybody has the same access to rewards and to opportunities going forward, no matter how often they are physically in the office,” he said. “It really comes down to making sure everybody has equal opportunities for everything despite whatever their work arrangement might be going forward.”
Vaccination risk management
Snead noted the issue of vaccinations — who got them and who didn’t, and how to create an atmosphere of safety — is an important topic to address in any return-to-work plan.
Lockton recently published a national COVID-19 Vaccine Pulse Survey Report it compiled from a survey of 300 participants in February and March. The report found:
- Almost 80% of companies plan to encourage employees to get a COVID-19 vaccine, but 3 of 4 have no plans to mandate.
- 15% will ask their employees to provide proof of taking the vaccine, a much smaller percentage than those who plan to incentivize.
Lockton said employers can legally require employees to be vaccinated, although Snead believes many in West Michigan will not do so.
In a statement, Lockton’s HR compliance department said the Americans with Disabilities Act (ADA) does not prohibit employers from mandating the COVID-19 vaccination when the employer determines unvaccinated employees would pose a direct threat to others in the workplace. Specifically, the Equal Employment Opportunity Commission (EEOC) said the administration of a COVID-19 vaccine to an employee by an employer, or by a third party with whom the employer contracts to administer a vaccine, is not a “medical examination” for purposes of the ADA because the employer is not seeking information about an individual’s impairments or current health status.
While the administration of the COVID-19 vaccination is not a medical examination, the prescreening vaccination questions may pose ADA violations, as the questions may elicit information about a disability. If the employer administers the vaccine, it must show that such prescreening questions are “job-related and consistent with business necessity.” To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of themselves or others.
By contrast, Lockton said there are two circumstances in which disability-related screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement. In the context of a mandatory vaccine policy, a simple solution is to have a third party with whom the employer does not have a contract — such as a pharmacy, other health care provider or local vaccination clinic — administer the vaccine so the employer is not the party asking the prescreening vaccination questions. Another way around the prescreening question is to have a vaccine policy that simply encourages employees to be vaccinated or offers an incentive to employees to become vaccinated. In that case, the employee’s decision to answer the prescreening, disability-related questions is voluntary. If the employee chooses not to answer the questions, the vaccine is not administered. The employer cannot retaliate against an employee for not being vaccinated in this situation.
If an employee maintains they cannot receive the vaccination due to a medical condition, an employer should treat this as a request for an accommodation under the ADA and engage in the interactive process. The employer can obtain information about the employee’s medical condition to determine if the employee has a disability, then determine if a reasonable accommodation will eliminate or reduce the risk associated with working while unvaccinated that would not pose an undue hardship to the employer. Similarly, if an employee objects to the COVID-19 vaccination based on a sincerely held religious belief, this may be protected under Title VII. Again, the employer will need to determine whether the religious belief can be accommodated without an undue hardship to the employer.
Managers and supervisors responsible for communicating with employees about the employer’s vaccination requirement should know how to recognize an accommodation request from an employee and who to direct the employee to for further discussion. In the case of a potential accommodation, employers and employees need to work together to identify accommodation options. Determining how many other employees in the workplace who have already been vaccinated and the amount of contact the unvaccinated employee will potentially have with others whose vaccination status could be unknown may impact the undue hardship analysis, Lockton said.
Employers should remind managers and supervisors it is unlawful to disclose to others that an employee is receiving a reasonable accommodation or retaliate against an employee for seeking an accommodation.
If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, and the employer concludes there is no reasonable accommodation, while it may be lawful for the employer to exclude the employee from the workplace, it does not mean the employer may automatically terminate the employee. Employers should proceed with caution and determine if any other federal, state or local laws afford the employee protection.
Legality of proof of vaccination
Lockton’s compliance team said an employer can ask employees whether they are vaccinated but should not ask employees why they were not vaccinated, as that inquiry could elicit medical information protected by the ADA. If an employer requires its employees to provide proof they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer should caution employees not to provide any medical information.
For employees who say they are not vaccinated, an employer can ask “Do you plan to get the vaccine when it is available to you?” If the answer to that question is “yes,” employers can ask, “When do you plan to get the vaccine? Within the next 30 days? 31 to 60 days? Within 90 days?” Answers to these questions may help an employer prepare for remote employees to return to the work site, Lockton said.
Seeking common ground
In collaboration with 30 other human resource leaders in the state, last year Lockton helped form the Michigan Talent & Culture Advisory Council to network and support each other on issues posed by COVID-19.
Amy McCulloch, strategic consultant, benefits and human capital at Lockton Companies Grand Rapids, attended the group’s May 11 virtual meeting.
“Many of the organizations with mostly remote workforces during the last 15 months stated they are working on a phased/staggered approach to safely return employees back on to work campuses. Some are spanning return-to-office requirements out to Q4 2021, and others (have) more immediate plans of returning in early July,” she said, “while others working in trades or medical industries with the majority of their workforce (with the exception of their support staff) working predominately onsite over the last 15 months, are working on plans for the support staff to return to work in some capacity either fully in person or hybrid.”
Snead said in many cases, real estate and floor plan layouts will dictate how long it takes to return to the office. Smaller companies may find it easier to physically distance workstations, and companies with 10,000 employees may need to obtain additional real estate.
McCulloch added: “Those with open workspaces are determining the cleaning rotation and ensure proper PPE requirements; they are also going to lengths to ensure cleaning crews to routinely clean and sanitize facilities throughout both the workday and at night to provide assurances of the facility cleanliness in all shared workspaces for their employees.”
One HR leader in the Michigan Talent & Culture Advisory Council said their organization was planning a “voluntary fun event” in the parking lot of their business for employees to come back together with their work colleagues to socialize and get reacclimated before in-person work resumes.
“The organizations requiring employees to return to work full time are aware they will have tough business decisions to make in the near future as they anticipate employees’ desires to continue working remotely,” McCulloch added.
Snead said HR departments already have proved they are on top of things.
“(COVID-19) created a lot of opportunities for the human resources group departments in each of these organizations to really connect with the employees in a different way,” he said — and they rose to the challenge.
More information about Lockton Companies Michigan, including the Grand Rapids location, is at bit.ly/locktonmichigan.