Return to Office: Answers to Five Common Employer Questions

Effective Jan. 26, the Occupational Safety and Health Administration (OSHA) officially withdrew its mandatory vaccine-or-testing emergency temporary standard (ETS). With no federal vaccine mandate, employers are left with questions and difficult decisions to grapple with as employees return to the workplace.

The following are answers to a few common questions.

Q: Can We Impose a Vaccine Mandate?

While the U.S. Supreme Court struck down OSHA’s ETS requiring that most individual employers can still implement a vaccine mandate. Before making this decision, however, employers must consider a number of factors. It is important to consider both how your employees and your customers would respond to such a mandate, the logistics of ensuring that vaccines are available and that employees comply with the mandate, and how your company would handle any pushback from employees.

This might include needing to replace employees who leave in response to a vaccine mandate. Further, it is a necessity that you develop a clear and comprehensive accommodation policy to address employees who object to the mandate on religious or other legally protected grounds.

Q. Can We Require Employees to Wear Masks at Work?

Yes, in general, employers can require employees to wear a face mask while at work, with a few exceptions. An employee may reasonably refuse to wear a mask if (i) the mask interferes with performance of the employee’s job, (ii) the mask creates a hazardous working environment (for example, if the mask prevents an employee from smelling a hazard), or (iii) if the mask aggravates a medical condition.

If an employee refuses to wear a mask, it is best to open a dialogue with the employee to determine his or her reasons for not wearing a mask, and to determine if a reasonable accommodation can be made. All employers should have a written policy regarding face masks, clearly communicate the policy to employees, and ensure the policy is uniformly followed and enforced.

Q. Can We Require Employees to Not Wear Masks at Work?

The short answer is, it depends. The Centers for Disease Control and Prevention (CDC) continues to recommend that individuals wear masks and practice social distancing while at work. Accordingly, an employee who insists on wearing a face mask despite an employer policy to the contrary would have at least a cognizable legal claim against the employer. An employee with a documented disability that is aided by or necessitates the wearing of a mask would be on even surer ground legally were they to insist upon wearing a mask.

Before creating a no-mask policy, be sure to consider how your employees would respond to such a policy and how your company would respond to any pushback. It is likely that most employees are tired of having to wear masks for over two years, so making masks optional may yield close to the same results that a no-mask policy would.

Q. How Can We Ensure Employees Feel Safe Returning to Work?

Employers can take a number of steps to make employees feel safe about returning to the workplace. As discussed above, employers can require vaccines for all employees, subject to the need to accommodate legally protected rights to refuse the vaccine.

Employers can also require those who are not vaccinated or who choose not to provide their vaccinated status to comply with additional safety measures. These may include masking and social distancing among others.

Further, employers can require a current negative Covid-19 test prior to working and can require employees to participate in surveys or screenings to attempt to identify symptomatic employees and prevent them from entering the workplace. These policies should be clearly communicated to employees and uniformly enforced.

Q. Must Employees Get Paid for Time Spent on Covid-19 Screenings?

In its public guidance, the Department of Labor (DOL) confirms that the time spent by an employee waiting for and undergoing an on-site temperature check, completing a health screening or survey, or being tested for Covid-19 after the employee begins his or her work day must be treated as compensable time.

The question becomes much more difficult to answer—and the source of a great deal of litigation—if the waiting, screening, and testing take place before the start of the workday or on a non-workday. While there are good arguments that this pre-work time is not compensable, it is likely easier and more cost-effective in the long run to have employees clock-in prior to undergoing testing or screening.

Most testing or screening takes less than two minutes to complete, and the slight payroll expense related to an additional minute or two on the clock each day would be greatly exceeded by the cost of defending any potential lawsuit. In short, it is safer to pay your employees for the time they spend undergoing Covid-19 screening.

In dealing with any of these questions, employers must be sure to maintain consistent policies that apply equally to all employees. As always, state laws vary and may have heightened or different requirements.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Jason D. Friedman is senior counsel in Constangy’s Washington, D.C.-area office. He litigates federal and state minimum wage and overtime claims across the country. Much of his practice involves class and collective actions. Prior to joining Constangy, he worked for a national plaintiff-side law firm.