Thorny workplace issues clog reopening plans

Just a few weeks ago, most people believed the end of the pandemic was in sight. The delta variant, of course, upended those hopes. 

But as businesses of varying sizes and in a variety of sectors seek to move forward, a long list of questions linger. Executives are grappling with myriad health and safety issues to consider, personal choices employees make and government rules to interpret.

In a series of interviews with the Business Observer, a trio of experts recently weighed in on some of the most significant questions. The experts include Jay Wolfson, professor of public health medicine and senior associate dean for health policy and practice at USF's Morsani College of Medicine; Regan Gross, human resources knowledge advisor at the Society for Human Resource Management; and Robert Shimberg, attorney and shareholder at Hill Ward Henderson in Tampa. Shimberg leads the firm’s COVID-19 response; Rachel Arnow-Richman, Gerald A, Rosenthal chair in labor and employment and law professor at the University of Florida's Levin College of Law.

Edited excerpts: 

Q: What is an employers’ responsibility to employees under COVID-19?

Wolfson: Under both the laws in place for COVID-19 and under the Americans with Disabilities Act, an employer has an affirmative obligation to provide reasonable accommodations for employees who have illnesses and injuries and disabilities that they’re aware of. But if I’m not able or willing to perform (a) task under the circumstances that the employers has articulated, then I can be terminated. There are two sides of the equation: The employee’s perspective and the employer’s perspective. Employers want employees coming to work functioning, serving clients, manufacturing devices, doing whatever it is they’re doing. The employer does not want the employee to be a risk to himself or others. The employee wants to be in a safe environment and wants to work and make money.

Shimberg: An employer generally has the responsibility to maintain a safe workplace and to take reasonable precautions for the safety of its employees. An employer should be knowledgeable of government (like OSHA and others) and industry workplace safety guidelines and follow the guidelines applicable to their type of business. They should also make sure there are open lines of communication with employees for issues including new and updated policies, government directives and contact tracing.

Q: Should, or can, an employer mandate masks and vaccines in the workplace?

Wolfson: I think employers have to develop humane but rational policies. They’re in business, they’re not social service organizations. Each employer needs to look at the circumstances for all their employees and determine what’s going to be fair for the employer and what’s going to be rational for the employee. And when you have a disconnect you have to say, 'Here are the consistent rules and you either have fit into the rules or I’m sorry and you can’t work here any longer.' So, an employer can require an employee to get vaccinated if it’s circumstantial. So if you're a front facing employee, if you’re in a clinical environment like a nursing home or doctor’s office, or if you're working in a department store and you are front facing with clients, an employer can say 'I want my clients to feel comfortable,' and they can require a vaccine because of the circumstance.

Gross: There’s been vast debate on these practices and it is going to depend largely on the employer’s industry, but until recently, the best approach was considered to be an honor system —wear a mask if you’re not vaccinated and not necessarily requiring proof of vaccination from employees. But now we have delta at play and the CDC is recommending employers go back to imposing mask requirements indoors — even for vaccinated workers. From a business operations perspective, if an employer runs a restaurant, retail or other small business, one employee COVID-19 positive or exposed employee could result in the entire business having to be shut down temporarily for quarantine due to a shortage of staff. 

Arnow-Richman: In general, most employers are free to mandate masks and vaccines, provided that they accommodate workers that have legitimate religious and health reasons that prevent their compliance. In general eployers are not required to accommodate workers’ expression of political beliefs at work.

What liabilities does a company take on if it doesn’t require masks and vaccines?

Shimberg: Companies should consult with applicable agency rules and guidelines and laws that may exist to help determine liability. They may want to also consult with their insurance carrier and industry groups. Company’s operating in Florida should review the law that went into effect earlier this year known as S.B. 72 (Civil Liability for Damages Relating to Covid-19).

Gross: It can depend on the facts involved and how severe they are, but wherever an employer assumes a risk, such as by taking a lax approach to CDC recommendations, even if there isn’t a specific law such as a mask ordinance in effect, they can find themselves in hot water. For example, OSHA fines for unsafe workplace practices, civil suits and even criminal charges depending on again the gravity of the situation. They may also lose business if they’re customer facing and don’t show a regard for customer safety.

What if an employee balks at either? What avenues does an employer have and what repercussions could a company face if the employee wasn't allowed to return?

Wolfson: What if the manager at a (restaurant) finds an employee is refusing to wash his hand after (he goes to the bathroom?) You terminate him because he’s refused to follow a basic public health rule that’s part of the policies and procedures of the company. That’s why it’s important that if you’re going to do this you want to talk with your attorney to make sure you have in place written, posted, communicated policies and procedures that are consistent and unambiguous, so that everybody knows what is expected of them. And if they say “I don’t want to wear a mask, I don’t have to” you say, “Yes you do because you work here.”  

Arnow-Richman: In general employment is at will meaning employers may terminate employees for any reason or no reason at all, as long as the employer does not do so for an unlawful reason like race, gender, or other illegal discrimination.  So an employer can discipline or terminate an employee who refuses to comply with company requirements safety standards, provided the employer is not treating workers differently on the basis of a protected characteristic, and as long as the employer is providing accommodations to workers whose refusal to comply is grounded in a sincere religious belief or health concern.  In those cases, the employer must reasonably accommodate the worker. This may mean the employer has to set up the work environment in a way that isolates that employee in order to protect others.

What accommodations can an employer make for an employee who won’t get vaccinated or wear a mask?  And how should it address those issues with the employees who do?

Arnow-Richman: An employer does not have to make any accommodations absent a health or religious reason for the employee’s refusal.  If an accommodation is required, or if the employer choses to provide one anyway, a lot will depend on the physical layout of the workplace. Distancing, testing, PPE for workers who wish to wear it, work-from-home options, improved ventilation, are among many options. Employers already have experience making workplace accommodations under the Americans with Disabilities Act for workers with a physical or mental impairments who need accommodations to perform their job. The ADA requires employers to think creatively about both the conditions under which the job is performed and the job itself (for instance, accommodations might mean reassigning a worker to a different team or reassigning particular tasks) Employers can draw on the same toolkit in dealing with unvaccinated or unmasked workers.   

Shimberg: Options may include working remotely if that is available, offering an incentive to get vaccinated or very regular Covid-19 testing. Similarly, incentives can be offered to employees who've been vaccinated.

Do you see a way for vaccinated and unvaccinated, masked and unmasked, employees to co-exist?

Gross: Employers do need to continue to encourage a respectful workplace and discourage any forms of bullying around individual decisions to mask, unmask, vaccinate or not. Employees have always had different opinions and viewpoints on a variety of topics, which in some cases can bring value to a business. However, the workplace has no room for disruptive behaviors which do not contribute to business goals and cause discord. Further, there can be legally protected reasons such as those which are religious and disability related, for not wearing a mask or being vaccinated. Any bullying or harassment could therefore result in violations under Title VII or ADA, landing an employer in both the news and court.  

Shimberg: Clear company expectations that have been communicated to employees and are enforced typically go a long way toward avoiding problems.