June, 2021

Protecting the Unvaccinated Presents an Employee Relations Quandary for Employers

By Tracey I. Levy

Under the Biden administration, the CDC has taken a strong position in support of vaccinating as many individuals in the United States as possible. The latest, very well-publicized carrot to incentivize that effort has come in the form of a lifting of COVID-19-related precautionary safety measures for those who are vaccinated. Masking, social distancing, workplace signage about effective hand washing – are all a relic of the past for those who have reached the point of “fully vaccinated.” But as discussed in our prior blog post, the guidance from OSHA is that masking and other COVID-19 precautions should remain in place for employees who are not vaccinated.

Very few workplaces have achieved the point of 100 percent vaccination, and therefore the practical effect of the government’s duality in approach is to bring the full weight of peer pressure down on those who are not vaccinated. The guidance from the EEOC stresses that accommodations must be made for those who are not vaccinated for medical or religious reasons, but employers who endeavor to do so are running into a significant employee relations problem. How do you provide vaccinated employees with the flexibility to resume the panoply of normal activities, while the unvaccinated subset of the workplace is immediately recognizable by their masks and social distancing measures? How do you resume pre-COVID activities like business travel, especially internationally, when a subset of your workforce may be unable to participate due to COVID restrictions? For workplaces that have been working largely remotely since March 2020 and are eagerly anticipating bringing employees back to the office in-person (at least several days per week), how do you rebuild team culture and fully integrate your newest hires who perhaps only know their colleagues by screen shots when any indoor group gathering will necessarily require sufficient spacing of a subset of the team and face masks will quickly brand those who opted out of vaccination?

There is no federal government guidance on this, currently, and a subset of states are contemplating laws similar to that which already took effect in Montana, which prohibit private employers from treating individuals differently based on vaccination status. Options employers may want to consider include:

• Maintain masking protocols in common areas, like pantries, break rooms and rest rooms;

o Those who are vaccinated may balk at being asked to continue masking, but the imposition is relatively modest, especially as the past year has gotten many individuals accustomed to having a mask on their person whenever they are out with others.

• Permit vaccinated employees to remove masks at their workspaces, and adjust seating arrangements where possible to provide social distancing between those who are not vaccinated;

• Explore options for having meetings, particularly larger gatherings, at outdoor venues;

• Schedule team meetings in conference rooms that allow sufficient spacing for six feet of social distancing, at least to accommodate the subset of employees who are unvaccinated;

o A conference room built for 20 can be reduced to only accommodating seven if everyone is socially-distanced, but a hybrid approach, in which social distancing might only be necessary for two or three individuals, could potentially allow that same conference room to seat a team of 15.

• Alternatively, continue to conduct team meetings by videoconference;

o One of the great benefits of meetings in which the entire team is participating by videoconference is that the participants all are equally-spaced and sized, and can more closely approximate speaking at the same audio level. That is a great equalizer when compared to in-person meetings in which some attendees can physically dominate the room and the conversation, and continuing videoconference meetings in the current environment similarly places the vaccinated and the unvaccinated on an equal plane.

• Reserve one or more smaller conference rooms or similar workspaces, perhaps outfitted with a portable HEPA filter for better air circulation, for use by unvaccinated employees when they are having one-to-one meetings with others;

o Some unvaccinated employees, especially those who are not vaccinated due to underlying medical conditions, may find their own mask to be insufficient protection when meeting with others who may not be masked, including clients or visitors whose vaccination status may not be known. Offering those employees an alternative, larger work space in which to conduct their meetings with social distancing and additional air filtration can reduce that concern, without “outing” the unvaccinated employee as someone with an underlying medical condition.

• Explore team-building activities that leverage the outdoors;

o As employers look to rebuild a cohesive culture, planning activities or events outside notably reduces the risks of COVID-19 exposure and enables unvaccinated employees to participate more freely.

• Advise managers, and all employees, to be sensitive to the range of reasons why employees may choose not to be vaccinated;

o To the same extent that we ask managers to address or report instances in which employees are engaging in harassment, retaliation or other inappropriate behaviors under respectful workplace policies, we want them to similarly address or report instances in which employees are being harassed or retaliated against based on their vaccination status.

• Regularly thank employees for adhering to protocols and being sensitive to their colleagues.

o None of this is easy, the stress of the past year has been overwhelming for many, and those who are vaccinated may have limited patience for continued COVID-19 precautions. Employers that acknowledge the strain and continue to express appreciation can help mitigate the negative impact on employee morale.

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