Returning to the Office in 2021 during COVID-19 pandemic

There is no doubt that the COVID-19 pandemic has immeasurably impacted the US workforce, resulting in office closures and staff teleworking. Studies shows that 3 out of 4 employees would prefer to return to an office setting, and as we enter 2021, it appears that they may get that wish. However, employers must understand their roles and responsibilities with such a transition. The health and safety of the workforce should be management’s top priority as it considers how to bring operations back to some semblance of normal. This is, of course, a moral, ethical and legal concern for all companies. And from a business perspective, safeguarding employees’ well-being is paramount because no plan to resume normal operations can succeed without them.

The workplace is monitored by several government agencies including the Occupational Health and Safety Administration (OSHA) and the Equal Employment Opportunity Commission (EEOC). Both agencies have recently provided guidance to employers on the transition to return to office settings. The EEOC has indicated that employers’ requiring employees to receive a vaccine for COVID-19 and deny access to the work place to those that don’t comply are not acting in a discriminatory manner. This applies to those employees that are unable to receive a vaccine for medical reasons or those that oppose a vaccine for religious reasons. The EEOC noted that the employer has a legal obligation to provide a safe and healthy work environment to all of its employees, which the EEOC views as overriding the employer’s obligation to make accommodations for disabilities and religious reasons.

Although the EEOC directive may be aimed at those employers seeking to have employees return to the workplace, it applies equally to those employers such as restaurants, medical offices and retailers who already have their employees back to work. However, in those settings the employer must be ever so careful to make sure that they treat their workers equally and the rule applies across the board, but also that they are not placing themselves in a position where they lack the sufficient number of employees to operate.

OSHA’s recent guidelines note that even with the return to office settings employers remain obligated to follow the CDC guidelines for social distancing, establishing flexible work schedules, installing plastic or plexiglass partitions between desks, and of course denying access to employees who exhibits symptoms or have been in contact with someone with COVID-19.

The question of who will pay for a vaccine shot if one is required by the employer is not addressed by either agency and it remains the employer’s option as to whether they will assume this cost. However, standard business practices indicate that if the employer requires the test they should cover the cost, but as note are not legally obligated to do so. There are many other factors that remain unanswered as the vaccines are being developed and rolled out. One such issue is whether workers compensation would apply for an employee who becomes severely ill as a result of being required to take the vaccine. As we enter 2021, these questions will likely present themselves and employers will be looking for ongoing guidance and direction as they navigate the new year.

Returning to the workplace could mean recalling employees who have been laid off or on furlough for ten months, but the focus will be on those who truly need to be in the office. In order to make that a realistic transition, management needs to get the employees buy-in on the plan. Bringing someone back to work who either feels unsafe or their presence is unnecessary could be the rusty wheel in the process. For that reason the employer must not only develop a plan for the return but explain the basis of the plan and why the plan is necessary and safe. There isn’t a one size fits all approach as some employers operate out of multi-tenant buildings or campuses, while others may function out of government sites. In those cases the company must also consider the landlords or government’s policies and procedures while also having to deal with the company’s own policies that address common areas. This year will continue to provide us with challenges and unprecedented changes, navigating them should be approached with assistance and as a group effort.

Mr. McHale has practiced Labor & Employment Law for over 25 years, and is licensed in New York and DC, as well as licensed as corporate counsel in Virginia. He currently represents clients in private medical practice, contractors, restaurants, transportation providers and government contractors. He can be reached at The Law Offices of Christopher M. McHale, [email protected], 7030-727-1468,