One year after the World Health Organization declared the coronavirus outbreak a pandemic, more and more employers are discussing the possibility of returning to the office. However, many general counsel and leaders of legal functions indicate that a return won’t be quick or easy, according to a poll conducted by Morrison & Foerster.
The more than 350 total responses to the poll, conducted from March 1 to March 9, underscore the uncertainties around a return. Even if assured of their safety, 41 percent of leaders of legal functions said they would not return, and 11 percent were unsure. And when asked when their company will return to the office, 48 percent said they did not know.
“These results indicate to me that returning to the office will not be as simple as turning the lights back on,” says Employment + Labor partner Janie Schulman. “There is still widespread hesitation among the workforce. It’s going to take time, and for some businesses, a complete return won’t happen at all.”
The responses also highlight the large number of complex issues employers need to navigate once the pandemic recedes. One of them is whether to adopt permanent remote-work policies. In the poll, 48 percent of respondents said their company either had adopted such a policy or was looking to do so in the coming months.
Whether employers should require employees to get vaccinated before returning to the office is another crucial question. In the poll, 50 percent of respondents said their employer would not require vaccinations while 10 percent would require them; 40 percent were unsure.
Mandating vaccines can expose employers to legal liabilities, Janie says. The Equal Employment Opportunity Commission (EEOC) has called prescreening questions for vaccines a “medical examination,” which can only be asked if it is job-related and “consistent with business necessity,” she explains.
“The EEOC has carved out an exception from this requirement: if vaccination is voluntary, and the decision to answer the prescreening questions is voluntary,” she says. “This means that employers that mandate the vaccine may potentially expose themselves to allegations of Americans with Disabilities Act violations that non-mandating employers won’t face.”
Bad publicity and low company morale can also result if requiring vaccines is seen as infringing an employee’s freedom, Janie adds. “The employer may also find itself losing some of its workforce due to employees who quit or are terminated because they refused to take the vaccine,” she says.
On the flip side, not mandating vaccines may potentially expose employers to different kinds of potential liability and negative PR. For example, employees who contract COVID-19 at work may claim it was the employer’s fault for not providing a safer workplace. Each company will have to consider its unique circumstances and any local laws in deciding what is best for the company and its employees.
The vaccine question is just one of many that employers will have to confront as they contemplate a return to the office. Results from the Morrison & Foerster COVID-19 Policies Poll suggest that many employers are proceeding cautiously.
“Employers are facing unprecedented challenges in returning workers to the office, so it’s not surprising that they appear to be taking things slowly,” said Janie.
For more information on Morrison & Foerster’s COVID-19 resources, please visit www.mofo.com/covid.