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ANALYSIS: Five Battles to Watch as Workers Return to the Office

Nov. 1, 2021, 7:00 AM

The onset of the Covid-19 pandemic forced businesses to abruptly transition to remote work. But for most employers, the return to the office is turning out to be a slower, more complicated process. That process won’t get any easier in 2022, as lawmakers, regulators, employers, and workers go to battle over vaccine requirements.

Here’s a look at how those battles will play out and define this next stage of the pandemic.

1. OSHA’s Emergency Temporary Standard

Employers haven’t seen the Occupational Safety and Health Administration’s Covid-19 vaccination and testing rule, but concerns about losing vaccine-resistant workers and the existing supply-chain backlog have them lining up to fight it.

The rule, which is expected to impose a “soft mandate” on large employers that requires workers to either prove they are vaccinated or submit to weekly testing, was initially seen as a gift by some employers. It allows them to impose a mandate that protects workers while shifting the blame and responsibility to the government.

That attitude has shifted as publication of the rule draws nearer and anxieties over implementation mount. It’s the details—like how workers are counted and who pays for testing—that are going to be key in assessing who will challenge the rule and how that challenge will play out.

If the rule is challenged, the odds aren’t in its favor. It is being put forth as an “emergency temporary standard,” or ETS. Such standards are controversial and suspectable to challenge because they allow OSHA to bypass the long rulemaking process to implement urgent six-month safety standards. Of the six such standards that have been challenged in court, only one survived to enactment.

2. The Federal Contractor Vaccine Mandate

The Biden administration’s hard-line rule that requires all federal contractor employees to be fully vaccinated against Covid-19 by Dec. 8 will reach around one-quarter of all U.S. workers and could set a new normal for vaccine policies—if it can survive legal challenges.

“Hard” vaccine mandates have been growing in popularity over the last few months, but many businesses have been reluctant to implement them because they can cost employers valuable workers at a time when most organizations have more openings than workers to fill them.

By putting such a large portion of the workforce into a hard mandate, the federal contractor rule sets a new normal, but that doesn’t mean it won’t face a fight.

The requirements have already been challenged by federal workers, Arizona Attorney General Mark Brnovich, and the state of Florida.

3. The States Push Back

Don’t expect state lawmakers to sit on the sidelines as the legal battles over the OSHA ETS and the federal contractor requirement play out. Instead, expect the flurry of state laws that will limit or soften vaccine mandates to continue.

States have been fighting vaccine mandates for a while now. Montana led the charge by enacting a law protecting workers from discrimination based on their vaccine status and banning employers from mandating any shots that haven’t yet received full FDA approval. Arkansas recently joined in with a law that allows workers to opt out of employer vaccine mandates by either testing negative for the virus weekly or demonstrating immunity through antibody tests taken twice per year. Ohio probably won’t be far behind with a similar law.

Texas Gov. Greg Abbott took a more direct approach by issuing an executive order outlawing vaccine mandates within the state. Just a day later, Florida Governor Ron DeSantis proposed a law to shield all workers from being fired for not getting vaccines and called legislators back a day later to make it happen.

Some states won’t even have to file a lawsuit or pass a law to challenge the rule. The federal OSHA allows the governments of 26 states to adopt and enforce their own workplace safety and health rules. Generally, state agencies have 30 days to adopt rules that are at least as effective as the federal rule. If states fail or refuse to adopt the rule—and they may—federal OSHA will have to kick off a slow review process that will inevitably delay implementation in those states.

4. Accommodations, Accommodations, Accommodations

Whether vaccine mandates are required by law or by employer policy, one major stumbling block for employers can be how and when they provide accommodations for workers.

Navigating accommodations has never been easy. The Americans with Disabilities Act and Title VII require employers to perform individualized assessments for each worker who requests a disability or religious accommodation, and that process is further complicated by a web of state and local laws with their own definitions and requirements.

What makes accommodations a bigger issue in 2022 is twofold. First, RTO requires employers to make more policy changes than usual, which risks triggering accommodation requirements. Second, the pandemic can make the stakes for those accommodation requests extremely high, making more employees willing to go to battle to enforce their rights.

There are already signs of an increase in ADA lawsuits. ADA charges have made up an increasing percentage of all charges filed with the EEOC over the same time period, and conditions are right for a surge in ADA claims in federal court.

5. Workers Resist the Return to Office

Not every battle will take place in a courtroom. One of the most difficult battles will take place in the office itself.

The pandemic gave a lot of workers a degree of flexibility they hadn’t experienced before. It allowed them to eliminate their commute and spend more time with their families. It allowed them to adjust their work schedules to match their schedules to their productivity. It saved them money. And, as much as employers may be prepared and ready for the return to the office, many workers are not.

Flexibility comes with risks for employers. It’s difficult to track worker hours and productivity, making an employer vulnerable to wage and hour lawsuits. It’s hard to maintain a company culture. It can be difficult to prevent and identify harassment and discrimination. Even those contemplating hybrid work environments—which have their benefits—are finding that implementing them is messier and more complicated than it sounds.

None of that risk changes the equation for workers, many of whom are choosing to resign and to prioritize well-being in their job search. Expect this problem to intensify in 2022 as more businesses attempt to bring workers back to the office.

Access additional analyses from our Bloomberg Law 2022 series here, including pieces covering trends in Litigation, Regulatory & Compliance, Transactions & Contracts, and the Future of the Legal Industry.

Bloomberg Law subscribers can find related content on our Return-to-Office Toolkit resource.

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