May 5, 2021

If you have employees working from home, and you want to transition them back to the workplace as the economy picks up, you may find it’s harder than you once thought. For some employees, nervousness about remaining health risks is an impediment — especially for those who haven’t been vaccinated.

Many Americans clamored to be vaccinated earlier this year when vaccines first became available but doses were scarce. In some places today, however, there is more vaccine than people who want to be vaccinated. Federal officials have estimated that 70 to 85% of the population may need to be immune (through vaccine or contracting COVID) before the pandemic is contained. Comparing the national COVID-19 vaccination effort to a war, a U.S. Chamber of Commerce official recently commented that “we’re about to enter the hand-to-hand combat phase.” In other words, it may not be easy to get some employees to feel comfortable being around colleagues, customers and others.

Employers’ Choices

Whether vaccination “hesitancy” or other issues are involved, employers have options up to and including termination (in some circumstances) if employees refuse to return to their workplaces. But that approach is not likely to be the best option for most employers.

If having your employees return to your worksite is the best scenario for your success, it might be tempting to insist they do so. But should you? Here are some possible reasons to not implement a blanket return-or-quit policy.

  • Many valued employees may be genuinely reluctant for legitimate health reasons.
  • A demand that your employees return to the workplace may cause more stress for employees whose lives have already been turned upside down by COVID-19.
  • It might be harder than you expect to recruit replacements for terminated employees.
  • A mandatory return may appear heavy-handed to other employees and damage morale among your entire workforce.
  • You may have wrongly assessed the legal risks of doing so.

The first step in formulating a strategy to get as many employees back to your worksite as possible is to get a complete picture of why the holdouts are reluctant to stop working from home. Different reasons may require different solutions. Consider conducting a survey but avoid giving the impression that simply preferring to work at home is a compelling enough reason to allow it.

Possible Help from Uncle Sam

Some employees who want to continue working from home may say their lives are frantic and they’re too busy with family demands to get vaccinated, and thus don’t feel safe. Or they may have other reasons for not wanting to get vaccinated. One possible solution for those employees is to give them paid time off work to get their vaccinations. (Some employers have taken that approach a step further by giving various bonuses to employees who get vaccinated, on top of their regular pay.)

The American Rescue Plan Act allows such employers to claim a refundable tax credit (applied to their payroll tax liability for employees’ Social Security and Medicare benefits) for COVID-19-related paid leave. An eligible employer is any business, including a tax-exempt organization, with fewer than 500 employees. Taking leave to get a COVID-19 vaccination qualifies the recipient for such paid leave, as does recovering from any injury, disability, illness or condition related to the vaccinations. The tax credit is capped at 80 hours and a maximum daily pay equivalent of $511.

Note: The tax credit deal ends on September 30.

Coaxing Tips

If financial incentives aren’t appropriate and employees plagued with health concerns need additional coaxing to return to work, here are some more ideas:

  • Educate, educate, educate. Inform employees about Centers for Disease Control (CDC) workplace safety standards and the scientific basis for those standards, as well as your compliance practices.
  • Give a generous heads up. Set the return-to-work onsite deadline a month or two into the future to give employees time to adjust.
  • Have a conversation. If feasible, have one-on-one conversations with employees who say they’re worried about returning to the workplace. They’re more likely to come around if they know you respect their concerns and want to understand them. A reasonable compromise might emerge.
  • Policy phase-in period. Instead of setting an all-or-nothing deadline for all employees to return to working at your jobsite full-time, allow worried employees to return initially for one or two days per week, then more over time, to help them get acclimated. It might be best to put a time limit on that transition.
  • Be as flexible as possible. Cutting deals with individual employees may create resentment by others. If you indicate to all employees from the start that you’ll do your best to accommodate them on an individualized basis, you can mitigate the risk of a backlash. But, be mindful not to stray wide of the boundaries of clear policies spelled out in your employee handbook.

No matter how you approach the task at hand, be aware of the many health conditions that may make people more vulnerable to contracting or having an acute case of COVID-19. The CDC’s list includes cancer, chronic kidney disease, COPD, heart conditions, obesity, pregnancy, smoking, and diabetes. Some employees with these conditions might worry about COVID-19 related health risks at the workplace, even if they’ve been vaccinated. That may be the place to draw the reasonableness-of-concern line, and think creatively about bringing them around, consistent with the Americans with Disabilities Act and other laws.

In all cases, be sure to review how not only federal but state and local statutes may impact the approaches you can take. Tapping the expertise of an employment law attorney is advisable.

© 2021