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Employers face daunting COVID-19 vaccination questions

COVID-19 has all but ensured offices will never fully return to normal. Now that vaccinations are here, HR will have to decide who should return to the workplace -- and who shouldn't.

The rollout of COVID-19 vaccinations will make it possible for workers to head back to the office. But employers face significant questions about what this return to work will look like.

HR departments will have to figure out whether employers can require COVID-19 vaccinations as a condition for returning to the workplace. They'll also have to consider who should continue working from home and whether social distancing should continue in the office. 

For now, offices are underutilized, and remote work is the norm. Data from Kastle Systems, which makes building access controls, shows office occupancy rates ranging from 24% to 27% over the last several weeks. The firm estimates occupancy based on its systems in 10 metro areas, including Los Angeles, Washington, D.C., Dallas, San Jose and Chicago. 

The arrival of COVID-19 vaccinations could reverse some of this but will likely be tempered by current workplace trends brought on by the pandemic.

Indeed, there will be many employees who do not want to return to the office, said Alla Valente, an analyst at Forrester Research.

"They have discovered that they can do their job from home," Valente said. Employers may adopt policies requiring employees to visit the office once a month, for a few days or just for a specific meeting. "What I don't see happening is everyone going back to those same cubicles the way we were," she said.

Lothar Harings, CHRO at Kuehne and Nagel International AG, a logistics firm in Switzerland, has been developing workforce post-pandemic plans.

The workplace will change

"We will not go back to how it used to be," said Harings, who was speaking this week at Phenom People Inc.'s virtual conference. Phenom is a talent relationship platform vendor.

Certain tasks are better accomplished in groups, with a direct and immediate exchange with colleagues, Harings said, while other tasks can be fulfilled easily from home.

Do we still engage in social distancing? Do we still have people wearing masks in the workplace?
Brian KroppChief of HR research, Gartner

The goal now is to categorize work tasks and then provide guidance to managers on who should work in the office and who should work remotely, according to Harings. "We have to give them a clear orientation, and the orientation has to be based on criteria," he said.

For employers, a COVID-19 vaccine may be critical to how employees return to the workplace. Brian Kropp, chief of HR research at Gartner, said one ethical question that may emerge is whether employers should buy vaccines and jump to the front of the vaccination line.

A firm may rationalize a COVID-19 vaccine buying decision as a good thing "because you want to protect some of the most important people in your organization and create a better experience," Kropp said. "But is that an inherently fair thing to do? And how are people going to react when you give a vaccine to some employees and not others?"

Once employees are vaccinated, employers may want them to come back to the workplace, but asking employees to do that opens up other logistical questions, Kropp said, including: "Do we still engage in social distancing? Do we still have people wearing masks in the workplace?"

The vaccine isn't 100% effective, creating potentially unsafe situations for vulnerable workers, Kropp said. There will also be employees who don't want a vaccine, so do you let those people come back to the workplace, he asked.

He pointed to school systems that require proof of vaccination for measles, mumps and other diseases.

Can vaccination be mandated?

The big question is whether employers can make it mandatory to be vaccinated, said Becky Baker, a partner at the law firm Bracewell LLP and head of its labor and employment practice.

There is some precedent for requiring vaccinations, but it's mostly for people who work in healthcare. A hospital can say that without a vaccine, "you can't treat our vulnerable, compromised patients," Baker said.

A vaccination requirement will be complicated by the Food and Drug Administration emergency use authorization for COVID-19, which means the product is still under investigation and not fully approved, Baker said.

Federal agencies, including the U.S. Equal Opportunity Commission (EEOC) and the Occupational Safety and Health Administration (OSHA), have yet to issue guidance on COVID-19 vaccinations in the workplace.

For its part, OSHA is only recommending the vaccination for its site inspectors, Baker said.

An employer might want COVID-19 vaccinations mandated under laws that legally require it to provide a workplace free from recognized harms that may cause death or severe injury, Baker said. 

Employers will also have to consider employees with medical issues, who might request an accommodation from a COVID-19 vaccination under the Americans with Disabilities Act. There is also a religious accommodation under the law, Baker said.

Finally, HR departments may see an uptick in workplace tensions due to employees who object to the vaccine for many reasons, and other, vaccinated employees who become upset at their decision, Baker said. "It's an unprecedented situation," she said.

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