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Get Back to Work: Four Things Employers Should Know

July 20, 2021

As the number of vaccinated people goes up and the number of COVID-19 cases goes down, companies and employees have to consider the option of returning to the workplace. With varying levels of comfort and confidence about being face-to-face with other people again, employers have to create clear policies to guide workers and set expectations.

While creating workplace policies, there are some things that companies should know — what they can and should insist on and what to watch out for when they do.

Companies may insist that employees return to work in person.

Much of the post-COVID employment talk has been about companies allowing employees to continue to work remotely.  However, remote work may not be an option for every company.

Some business models rely on in-person interaction for multiple reason including productivity, efficiency, customer service, the nature of the work to be performed or accountability.  If a company determines that remote work is not an option, then the company may require that employees return to in-person work.

Some employees may not be able to return because of a disability, that is, the employee cannot perform the essential functions of their job because of a physical or mental handicap.  Before an employer may legally terminate a disabled employee, the employer must determine whether or not the employee can perform the essential functions of the job with or without a reasonable accommodation.  Therefore, we recommend that prior to terminating an employee who claims to be disabled, that the employer consult with legal counsel. 

Companies may insist that employees be vaccinated.

While we make room for vaccination hesitancy as a society, there’s no legal reason that a company cannot insist on vaccination and to view proof of vaccination.  However, this is a complex issue because the COVID-19 vaccines have only been approved for emergency use. 

As with disabilities that restrict people from returning to the workplace, some employees may choose to not be vaccinated because of an existing medical condition or a religious objection. In these cases, employers should consult with legal counsel prior to making a decision requiring vaccination. 

Companies can insist on proof of medical conditions or disabilities.

If an employer claims that they have a medical condition or are disabled in some manner which requires an exemption from mask-wearing or vaccination, then the employer may require about the claimed medical condition or disability for the purpose of developing a reasonable accommodation for the claimed medical condition or disability.  Moreover, employers can ask for proof of a medical condition or disability, including contact with the employee’s physician.

However, it is imperative that any and all medical information collected from employees be kept confidential. Even something as innocuous as announcing the name of an employee who has contracted the virus or is working remotely for medical reasons can lead to legal trouble.

Companies may require employees to wear masks.

And hey, who could blame them? Face masks are a common safety practice in many countries for protection against airborne pathogens. So if you believe your workplace is safer and more hygienic with masked employees, you may require the employees to wear masks. (Hairnets weren’t always commonplace either.)

As with any of these requirements, be aware of disabilities that may disqualify some employees and make adjustments as necessary.

“Back to normal” seems so close we can almost taste it! But this post-COVID era will take careful thought and planning to navigate.  There are many practical, legal and financial issues regarding how to “return to normal.” Ohio is currently among the top five states in the country for COVID litigation, so seeking a legal opinion on any proposed policies is a smart move. But if you know your rights as an employer and carefully consider the well-being of your employees, customers, and business, you’ll return to work smoothly and successfully.

About the Author

C.J. Schmidt

C.J. Schmidt

C.J. Schmidt practices in the firm’s Litigation and Labor and Employment Practice Areas.

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