L ABOR & EMPLOYMENT
Expect Problems When Employees Return to the Workplace By PHILLIP MALTIN
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ccording to Pew, 71 percent of American workers now work from home most of the time. As the pandemic wanes, the need for social connection outside of the home will grow. According to psychologist Matthew Lieberman, “Being socially connected is our brain’s lifelong passion.” The desire for social interaction will drive some people to return to a centralized workplace. Couple that with businesses wanting workers to return to a common worksite, and employment reintegration will rise as Covid-19 infection rates drop. With so many people working alone for the past year, the reintegration may lead to struggles with behaviors that have developed in
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private. This article surveys these issues, discusses an employer’s legal obligations and proposes ways to counter problems that may arise. The Employee Who Refuses the Vaccine for Political or Religious Reasons: Employers may require their employees to receive a vaccine against Covid-19 before returning to the worksite. The Centers for Disease Control recommends that employers administering the vaccine or providing it through a third party ask medical-related questions to prescreen those receiving the shot. The questions may qualify as a disability-related inquiry under the Americans with Disabilities Act (ADA). Consequently, employers
providing the vaccine must demonstrate that pre-injection questions are “job-related and consistent with business necessity.” This means that an employee who refuses to answer the questions or receive a vaccination, and who the employer refuses to return to work, must “pose a direct threat to the health or safety” of themselves or others. A direct threat is something that “reasonable accommodation” (meaning modifications to the job or the workplace) cannot eliminate or reduce. In evaluating whether a direct threat exists, employers should determine things such as the duration of the risk, its nature and severity, and the likelihood that harm will occur. The Equal Employment Opportunity Commission has information detailing “What You Should Know.” (See tab on the EEOC’s website.) An employer that requires but does not administer the vaccine may encounter the two legally significant reasons why an employee may object to receiving the vaccine: (1) It violates the employee’s sincerely held religious belief or (2) it affects a medical or emotional condition the employee has that qualifies as a disability under the ADA. In both cases, the employer must engage in the “interactive process,” a good faith dialogue with the employee BACK TO CONTENTS
