Expect Problems When Employees Return to the Workplace

By Phillip Maltin

According 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 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 pre-screen 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 addressing the person’s religious commitment or medical limitation and considering ways to help the person perform the essential duties of the job. (The “essential functions” are the responsibilities for which the business created the job.) Business leaders must not question the employee about the disability, only about the restrictions it causes.

The Employee Who Provokes Political Debates:

Most states prohibit an employer’s attempt to coerce or influence employees to engage in political activities. These laws, however, permit an employer to control the workplace. Business leaders may prohibit employees from arguing about politics while on the clock, just as they may curb other activities that disrupt the workplace.

A business should have a policy that permits off-hours political activity but prohibits them while on duty. The policy should restate the company’s commitment to diversity and inclusion and its policies against discrimination, harassment and bullying. It should remind employees to respect different views. Employers should forbid disruptive political conversations on the clock, not because a person articulates a political position but because the conversation disrupts work.

Employers should recognize that political discussions can clash with legally protected union organizing or “concerted” activities. Section 7 of the National Labor Relations Act protects employees trying to establish collective bargaining or collective forms of protection. Protected discussions can include conversations about wages, leaves of absence and criticisms of the employer.

The Employee Who Wants to Hug:

Some people may have lost their perspective on personal boundaries during their time at home. Some may never have developed them. Either way, business leaders must curb over-affectionate colleagues.

Begin with a well-crafted anti-harassment policy stating that an employee may not hug a co-worker or independent contractor against their wishes. Whether to hug or shake hands should be part of anti-harassment training. Deciding which to do in real time sometimes leads to the hugshake, that awkward moment when people shake hands and embrace at the same time. But a hugshake is better than a shakedown, which is how some businesses view lawsuits arising out of workplace misconduct. Now is a good time to revisit and update the policy.

The Employee Who Neglects Personal Care:

The stress of returning to the workplace, or habits developed while working from home, can lead to poor hygiene — appearing disheveled, failing to wash hands, and failing to bathe or use deodorant. An obvious solution to these problems exists, but it’s buried in a legal minefield. Simply address the issue with the employee in private. Some people may be unaware and appreciate the confidential exchange. Others may react defensively. Business leaders, however, must recognize that some things appearing to be the result of careless personal hygiene can arise from medical or psychological conditions protected under the ADA.

A clear policy describing the business’s expectations regarding appearance and cleanliness is essential for responding to defiant employees who continue to act in objectionable ways. Businesses must enforce their appearance and hygiene policies consistently. Selective enforcement may invite claims of disparate treatment discrimination. When the employee’s issues derive from a disability or condition the ADA protects, engage in the interactive process to propose reasonable accommodation.

Workplace policies are necessary, but they are not enough. Business leaders must address employment-related problems as they arise. Require return-to-work reorientation meetings that survey the problems workplace reintegration may prompt. Individual reorientation, department meetings or business-wide state-of-the-business updates should include reminders to observe personal boundaries and to report problems immediately.

Phillip Maltin is a trial lawyer, employment law expert and chair of the Commercial & Employment Risk Control Department in the Los Angeles office of Rains Feldman LLP.