With vaccine administration ramping up, many U.S. office-based employers are turning their attention to planning for their employees’ return to work. Texas Governor Greg Abbott recently ordered a lifting of the statewide mask mandate and business occupancy restrictions effective March 10, accelerating the timeline for Texas employers to make critical workplace decisions.
Understandably, many employers prefer to have most employees working together in a shared space to increase opportunities for collaborating, supporting the corporate culture, maintaining productivity, enabling talent recruitment and retention and a host of other reasons. Yet returning to the office post-pandemic will likely look very different. Now, increased flexibility is the expectation, and support for teleworking has grown, as a PwC survey of executives and office workers revealed last year. The survey found that most office workers (83%) want to work from home at least once a week, the majority (72%) would like to work remotely at least twice a week, and over half of employers (55%) anticipate offering at least a once-a-week remote working option long after the pandemic ends. Nevertheless, the study also revealed a significant need to continue using office space for collaboration and community building.
So what does this mean for office-based employers wrestling with when and how to bring their employees back to the office? How can employers best protect employees’ safety while also making the best possible business decision? Achieving a safe office return requires carefully navigating the unknowns about in-office transmission risks, evaluating the authorized vaccines’ significance and continued vigilance about the legal and practical issues involved.
What Science Tells Us About Office-Related Transmission Risk
Risk is inevitable with virtually all aspects of daily life. What is important for evaluating return-to-the-office decisions in today’s environment is a firm understanding of the actual Covid-19 risks in a particular workplace and the measures that can mitigate those risks so businesses can reopen safely.
There are three primary components to the Covid-19 transmission risk calculus that employers should evaluate from a scientific standpoint: (1) the chance that someone comes into the office environment with Covid-19; (2) the chance that the infected person transmits Covid-19 to someone else; and (3) the chance that a colleague, colleague’s family member, or other third party suffers serious harm as a result.
For the first component, key variables include the local disease trajectory, the vaccine availability and adoption rate, the degree to which infected employees stay home when sick and the company’s sick policies.
For the second component, key variables include the office environment itself – its density and airflow, the safety protocols implemented by building management, the behavior of employees (e.g., face mask compliance), firm policies and procedures and the viral load.
For the third risk component, key variables include employee demographics, treatment updates and, again, the viral load.
Not every workplace carries the same risk. Even within a single workplace, there are different risks in different spaces based on the unique conditions and behaviors within that space. For instance, employees sitting across from one another in a break room, eating and drinking while conversing loudly, face a much higher risk than employees sitting across from one another in cubicles or other semi-divided workspaces where they may be working quietly.
Based on the latest Covid-19 research, speaking carries a 30 times higher transmission risk than breathing. Similarly, the risk of airborne transmission is about 20 times higher than transmission via surface contact. Stated differently environments that are quiet and low density are generally lower risk, by a significant margin.
It is not just speech and volume that matter when evaluating a workspace’s specific transmission risk. Employers also must consider factors such as ventilation, filtration, time, the density of people, the volume of space, testing, business policies and fluidity of movement.
Many employers understand that good policies lower risk, but what is underappreciated is how dramatic the effect is. The data reveals that adoption and enforcement of policies targeting the most significant variables cut Covid-19 transmission risk in the office by a factor of 20 to 100 or more, compared to other common activities like dining in a restaurant. Consequently, computational models of Covid-19 spread – employing thousands of AI-enabled workplace simulations that consider a company’s unique risk modifiers – are an extremely valuable tool in developing a custom risk profile and risk reduction plan tailored to that specific business, its office environment(s) and its employees.
This also underscores the importance of office leadership communicating clearly with employees about the difference that good policies and policy compliance can make. In many cases, these targeted actions should focus significantly on density management, science-based policies and procedures and effective employee education to reinforce these measures.
In sum, there are three key scientific takeaways for businesses: (1) Covid-19 spreads in specific ways that can be targeted; (2) environmental risk levels can differ by a factor of 20 to 100; and (3) businesses should understand and employ actions that will make the biggest difference to reduce their workplace’s marginal risk factors.
What the New Vaccines Mean for Return-to-the-Office Planning
Today, three vaccines have received FDA emergency use authorization. Moderna’s and Pfizer’s vaccines have demonstrated greater than 90% efficacy against the virus that leads to Covid-19 with two doses. Johnson & Johnson’s vaccine has demonstrated substantial efficacy with just one dose. Mass distribution is underway, and it is hoped that hundreds of millions of doses will be administered in the coming months. Two other vaccines, AstraZeneca/Oxford and Novavax, will potentially be approved by the FDA in the near future, further increasing vaccination capacity in the U.S.
These vaccines occasionally have a more intense side effect profile than other vaccines commonly administered to adults, but typically resolve within two days. In turn, employers should consider contingency planning for office workers who may be briefly sidelined following vaccination.
The expected distribution of vaccines to the general public should begin in earnest soon. At this stage, education of the workforce is critical, and employers should begin planning return-to-work expectations for employees. As case rates decline, additional employees can be brought into the office, so long as workplace density is managed and appropriate safety policies are maintained and reinforced through effective employee communication.
By Q2 2021, when approximately 25% of employees are anticipated to have been vaccinated, an additional Covid-19 case peak is possible but should be lower than those previously experienced. At this stage, employers may likely begin bringing a significant percentage of their workforce back into the office.
Once 75% of employees have been vaccinated, it is projected that – barring a mutation that significantly evades the current vaccines – a significant rise in cases is unlikely, although occasional Covid-19 positive cases will be present. Absent any health issues, the default worker is likely to be in the office on a “regular” schedule – whatever that means in the new, more flexible office landscape. Meanwhile, employers should focus their efforts on reinforcing requirements that sick employees stay home.
With each projection, a significant caveat applies. To reach the target percentages of vaccinated employees, public health campaigns and company policies must be effective in encouraging individuals to get vaccinated.
In sum, scientific research and data suggests that wearing a mask, receiving the vaccination and avoiding poorly ventilated settings are crucial until cases subside and vaccination rates climb. Over the coming months, employers can develop and implement customized risk reduction plans – and accompanying policies and procedures – to facilitate returning to the office in a relatively safe manner.
How Legal and Practical Factors Come Into Play
Myriad legal and practical issues must be considered by each employer in devising and implementing a safe, appropriate return-to-the-office plan.
Employers have a baseline duty under the Occupational Safety and Health Act to provide a workplace free from recognized hazards likely to cause death or serious physical harm. With Covid-19, many employers already put numerous policies and procedures in place to address this in 2020.
Such measures include restricting occupancy and/or scheduling employees in shifts, restricting gatherings in higher-risk spaces, requiring social distancing and using face masks, requiring temperature-taking and other tests (but not antibody tests), requiring employees to conduct a self-health evaluation and attest daily to its successful completion before reporting to work, and similar common-sense requirements, particularly those that follow CDC and state/local public safety authorities’ guidance. As always, reasonable accommodations may be necessary, where requested.
Over the past year, many employers have been extremely flexible in allowing employees to work from home, and many have adopted various policies to support employees’ legitimate home office needs to help keep workers productive and engaged.
Today, the biggest issue on many employers’ minds is whether they can – or should – require employees to get vaccinated against Covid-19. In mid-December, the EEOC published guidance outlining employer compliance mandates under the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964 and the Genetic Information Nondiscrimination Act. The EEOC’s guidance addressed several pressing questions regarding the new vaccines.
Important takeaways from the EEOC’s guidance include:
- The administration of an FDA-approved or authorized Covid-19 vaccine to employees is not a “medical examination” pursuant to the ADA and, therefore, may generally be required by employers under federal law.
- Although the vaccine is not considered a “medical examination” under the ADA, prescreening questionnaires given to employees by an employer in connection with a vaccination may implicate the ADA’s provision on disability-related inquiries. In such cases, the employer must demonstrate that the prescreening questions are “job related and consistent with business necessity.”
- If an employer requiring a Covid-19 vaccine determines that an employee who cannot be vaccinated due to a disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace (or take any other action) unless there is no other way to provide a reasonable accommodation (absent an undue hardship) that would eliminate or reduce this risk. Under the ADA, “undue hardship” is defined as “significant difficulty or expense” incurred by the employer in providing an accommodation.
- Employers requiring the vaccine must also provide a reasonable accommodation for an employee’s sincerely held religious belief, practice or observance that prevents the employee from receiving the vaccination unless doing so would pose an undue hardship under Title VII. Notably, under Title VII, “undue hardship” is defined as having more than a de minimis cost or burden on the employer (which is easier for an employer to establish than under the ADA “undue hardship” standard).
- Title II of GINA is not implicated when an employer administers a Covid-19 vaccine to employees or requires employees to provide proof they have received a Covid-19 vaccination. However, if any pre-screening questions by the employer ask about genetic information (e.g., immune systems of family members), such inquiries could violate GINA.
This new guidance illuminates how employers might best structure their employee policies and procedures relating to Covid-19 vaccinations. Employers who mandate vaccination should require a pharmacy or other third-party health care provider to administer the vaccine to avoid ADA implications associated with prescreening vaccination questions. These employers will also want to educate and train management so they are prepared to field and respond appropriately to any requests for accommodation, and should also carefully consider privacy laws surrounding the employer’s receipt and maintenance of employee medical information. Further, employers must be prepared to consider all state laws pertaining to mandatory Covid-19 vaccinations.
Meanwhile, employers inclined to encourage voluntary vaccinations may want to consider measures to promote participation such as providing vaccinations on-site or near the workplace; covering vaccine-related costs; compensating employees for time spent getting vaccinated; and/or allowing employees to take a personal day for vaccination.
Beyond the legal ramifications, employers should consider the potential consequences for employee morale and company culture. While requiring vaccines may be welcome by many employees, others are apprehensive of vaccines, and may cite the rapid development and authorization of COVID-19 vaccines as grounds for further trepidation.
Employers who opt to mandate vaccination should also be prepared to address the practical considerations. For example, if employees refuse the vaccine with no justifiable legal basis, what does the employer do? Does the employer terminate the employee, require a waiver, implement modified work duties, etc.? Also, is the employer prepared to equally enforce the policy – including vis-à-vis essential or legal personnel?
No matter what course an employer determines is best, it should be preparing now to effectuate a solid vaccine policy framework based on guidance from the company’s human resources and legal team, so that it is positioned to communicate that plan clearly and effectively to employees.
Next Steps: Deciding What’s Right for Your Business and Moving Forward
Given the remaining uncertainties, employers should consult trusted advisors, carefully weigh all the pros and cons, and identify the key variables that influence the transmission risk in their particular office(s), before formulating a return-to-the-office plan.
When it comes to devising targeted strategies to manage and mitigate risk in the office, it is important to remember no one-size-fits-all solution exists. Instead, employers should tailor their safety measures based on their unique location and layout risk.
Beyond creating this initial action plan, employers must remain flexible and prepare to adjust strategies as needed due to changed circumstances. The pandemic can rise or fall, new variants can suddenly emerge and even the regulatory and legal guidelines can change – as is often common following a new executive administration.
Week-to-week, levers that can be pulled by employers to adjust transmission risk variables including the number of people allowed into the office, the time they are spending in certain activities (e.g., meetings) and the level of enforcement. This will allow for some office collaboration, creativity and socialization. As case rates fall and employees feel more comfortable, restrictive measures can be relaxed and productivity improved.
Beyond simply deciding “what to do” and “when to do it,” it is also important to communicate effectively with employees about the thought process behind leadership’s decision-making, the science-based risk factors employees face and how adherence to the employer’s thoughtfully designed policies can help to effectively manage and mitigate those risks.
With this guidance in mind, most office-based employees should be able to return to their workplaces in 2021 – enabling their businesses to be more collaborative, productive, culturally strong and, ultimately, successful.
Jason T. Weber is a Dallas-based shareholder at Polsinelli and a member of the firm’s Restrictive Covenants, Enforcement and Trade Secrets (RCETS) practice. Jason focuses his practice on business disputes and employment-related consulting and litigation.
Michael Gao, M.D., is the founder and medical director of Haven Diagnostics, a medical analytics company helping employers work from the office with confidence. He is an assistant professor of medicine (courtesy) at Weill Cornell and is recognized as a leader in applied Artificial Intelligence, previously serving as the medical director for transformation at New York-Presbyterian Hospital.