Re:opening your workplace – Re:vision your workplace

Fredrikson & Byron - Kendra Simmons
June 21st, 2021

Top Areas of Focus for Employers Reopening Their Workplaces

One of my favorite parts of practicing employment law is the challenge of staying current on the constantly-changing rules and issues facing employers. The past year-plus presented employers—and employment attorneys—with countless trials in the number and pace of changes due to COVID-19. While it feels like we’ve reached the light at the end of the tunnel, in some ways the workplace and employment relationship will be changed forever. Wherever you may fall on the scale of reopening (or keeping open) your office or workplace, you should determine your approach on the most urgent issues arising out of the pandemic.

1. Decide

Decide whether you will require, encourage, incentivize, or take some other approach regarding the COVID-19 vaccine. Whatever your decision, leave yourself flexibility to change.

Employers need to decide what makes sense for their workplace when it comes to the COVID-19 vaccine—whether to require, encourage, or incentivize it or whether to take another approach regarding both employees and guests. As for your employees, if you require the vaccine, be aware of the guidance the EEOC (and any other relevant authority, especially if you operate in multiple states) has issued and the additional obligations you have as an employer when mandating the vaccine, including but not limited to providing a reasonable accommodation to employees who can’t get the vaccine due to a disability or sincerely held religious belief. For these reasons, few employers are actually requiring employees to get vaccinated, and those that are tend to be in the health care, long-term/residential care, or manufacturing environments where employees work in close proximity to each other or to patients/clients. Private employers in Iowa—and other states that have passed similar measures—need to consider the impact of recently enacted legislation restricting their ability to ask customers on their premises for proof of vaccination.

The status of the current vaccines as being approved for emergency use—rather than full use by the FDA—seems to be discouraging at least some employers who would otherwise require the vaccine. Some of these employers have taken the approach of encouraging the vaccine for now but stating that they will reconsider their approach once the vaccines are fully-approved or depending on rates of infection within the community. While something to consider, the vaccines’ status as approved for emergency use should generally not stop employers who would otherwise require the vaccine. On June 12, we got the first insight into how courts would treat this issue when a Judge in the U.S. District Court for the Southern District of Texas expressly rejected the argument that emergency use status restricted private employers in dismissing a suit by hospital employees challenging their employer’s requirement for all employees to get the COVID-19 vaccine (absent an except for a reasonable accommodation of a disability or sincerely held religious belief).  

Most employers are either encouraging and/or incentivizing vaccination among their workforce. Encouragement has come largely through education (see Section K at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws for various resources). Incentives range from additional paid time off to get vaccinated and recover from any side effects (most often two to four each for each dose) to gift cards or small one-time payments of $100-125 (as some large retailers or grocers have announced). Any incentive should be taxed appropriately and not be so large as to be “coercive” in the sense that employees can’t reasonably decline. 

Beyond whether to require it, the other most frequent question surrounding the vaccine is whether employers can and/or should inquire with employees about their vaccination status. If not requiring the vaccine, consider whether you have a legitimate need to know employees’ vaccination status; don’t ever ask merely out of curiosity. If you do ask employees to provide their vaccination status, or proof thereof, keep record of any vaccination status separate and confidential from other personnel records.

Regardless of your decisions regarding the vaccine, be aware of evolving CDC and OSHA guidance. With the CDC recently revising its guidance to declare that fully-vaccinated individuals don’t need to wear face coverings in most situations, more employees may be willing to get vaccinated. Those who are fully-vaccinated can now meet in person without having to mask up, among other things. While most employers are proceeding with the honor system, if you request proof of vaccination, limit your request to that (and not seeking other medical information) and maintain any such information separately and confidentially. Unvaccinated employees should continue following precautions like wearing face coverings and maintaining social distancing; employers should continue these measures before excluding unvaccinated employees from the workplace entirely.

2. Determine

Determine the extent to which you will embrace remote work for your workplace into the future.

The extent to which you can start or continue working remotely depends largely on the nature of your business. For certain industries and positions, remote work is simply not possible or does not make sense except in rare situations. However, since COVID forced many businesses to make remote work “work,” opinions on it have changed. In the post-pandemic “new normal,” hybrid workplaces are expected to be more common, and employees are expected to demand more flexibility as employers struggle to attract and retain qualified employees. While some employees would prefer to continue working remotely full-time and others don’t ever want to work remotely again, surveys indicate that most employees fall somewhere in between and would prefer to have the ability to work remotely when needed. The same surveys report that many employees would leave their job and/or work for less money in exchange for more flexibility and the option to work remotely. To attract and retain the best talent, employers may therefore need to revisit prior opinions or any prior resistance to allowing remote work.

Determine the circumstances under which remote work works for your business and your team. Will you allow it only for certain positions? Will you limit how often employees can work remotely? Who will decide whether and when an employee can work remotely—the employee or a supervisor or other employer representative? Regardless of the circumstances under which you allow remote work, develop and consistently enforce clear written policies and expectations, document employee productivity, and address performance issues. Ideally, this is done not only through an appropriate remote work policy but also through a remote work agreement with each employee outlining applicable standards and when the ability to work remotely may be revoked by the employer.

The pandemic will also affect what your workplace looks like for those working in person. As you reopen your office, to the extent you haven’t already, (1) document your plan, (2) enforce it consistently, and (3) be aware of—and avoid—any impact to employees based on any protected class. Consider reopening in phases or alternating schedules so you can determine the arrangement that works best for you. Until the pandemic is over, and even when it is, employers will need to consider what safety measures they can/should continue. There will also be some aspects of remote work that make sense to maintain for efficiency, such as continuing to hold certain meetings virtually. Of course, there are some elements of the in-person workplace for which there is no suitable replacement; determine what these are for your workforce and document what they are and why there is no suitable replacement. Now would be an ideal time to revisit and update your employee handbook and job descriptions to reflect any changes and current realities.

3. Ensure

Ensure that your trade secrets and confidential information are adequately protected.

Recent events and remote work during the pandemic have renewed a focus on protection of confidential information and trade secrets—from both inside and outside threats. With the expansion of remote work, we’ve seen employee theft of confidential information and trade secrets increase as third parties have developed new tricks and stepped up their attacks. 

Do everything you can to avoid making yourself an easy target. In addition to updating your remote work policies and agreements as mentioned above, consider additional protective measures such as educating and training your workforce on how to recognize and defend against evolving threats, implementing additional encryption through a VPN (virtual private network), limiting access to especially confidential information on a need-to-know basis, tracking electronic activity for unusual trends (such as employees downloading files or forwarding them to external sources), and installing multi-factor authentication on employee accounts and devices. With recent ransomware attacks in particular reportedly arising out of things like a compromised password, something as simple as requiring that employees verify their identity by entering an authentication code sent to a second device may prevent you from becoming the victim of the next attack.

Conclusion

The pandemic provides a unique opportunity to employers to reconsider the way they work. The market may force changes in everything from remote work to wages to benefits, and more. Don’t be afraid of change, and use this opportunity to determine what works best for you. Whatever that is, document, communicate, and leave yourself room for flexibility.


Kendra Simmons is a Shareholder at Fredrikson & Byron, where she helps employers prevent and solve problems. She is an experienced advisor and litigator, representing employers most frequently in the health care, construction, manufacturing, transportation and technology industries. Her expertise includes matters involving equal employment, non-competes and other restrictive covenants, and drug and alcohol testing.