The Delta variant has become the dominant strain of COVID-19 in the U.S. As employers are planning to reopen their workplaces and welcome back employees, the Delta variant is a new challenge they have to work through. From safety measures and vaccinations to the potential discovery of another new variant, businesses and employees will have to adjust to a new normal as they go back to work. So, what does that mean for business owners? As you think through updated safety measures, vaccine mandates and employee protocols, we’re here to help.
The Hartford recently hosted a panel discussion in July on “Adjusting to the New Normal After the Pandemic.” Panelists included:
- Dr. Adam L. Seidner, chief medical officer at The Hartford
- Wendy Mellk, principal at Jackson Lewis P.C.
- Dr. Michael Lacroix, medical director at The Hartford
These experts provided information on the health and legal risks that employers may face when reopening, as well as how to help employees heading back to the office.
As of Aug. 10, 2021, the U.S. administered over 352 million vaccine doses.1 Over 58% of the population received at least one dose of the COVID-19 vaccine, with over 50% of the population fully vaccinated.2 Experts noted that the Delta variant is causing an uptick in infection rates – particularly in areas with unvaccinated people.
“The Delta variant makes up over 93% of the genomic makeup of the virus in the U.S. We also have to pay attention to Brazil and the New York variants,” Seidner said. “The good news is that the virus is basically getting taken care of by the vaccines that we have. So, if you’re vaccinated, you’re protected from getting moderate to severe COVID-19.”
As effective as the vaccines are against COVID-19 and the current variants, employers reopening their offices also have to consider workers that aren’t getting vaccinated. And they have to think about how to keep their employees safe. From following health and safety guidelines to providing mental health tools and resources, there are many things companies can do to create a safe workplace.
Look Into a Phased Approach for Returning to Work
If your workforce is currently working from home, bringing every worker back at the same time can be dangerous. Doing so can lead to increased transmission and positive cases. Instead, a phased approach gives you the opportunity to make adjustments if issues come up.
A return to work plan with multiple phases will require employers to redefine how their business offices run, Seidner noted. The pandemic caused a fundamental change in how offices work.
For example, employees may only be able to use the escalators to go up. If they want to go down, they may have to take the stairs to ensure there’s social distancing between employees. Employers may also need to develop a plan for the cafeteria, which can include:
- New hours of operation
- One-way traffic flow
- Encouraging the use of contactless payments
“Anything in the office space – whether it’s equipment, computers or ways to get around the building and campus – needs to be considered when bringing employees back to work,” Seidner said.
It’s imperative that you and your legal team review your business’ return to work plan and policies to make sure it complies with Equal Employment Opportunity laws. For example, if you’re deciding which employees will return to the office versus remain working remotely, it’s important that your business makes “legitimate non-discriminatory decisions” related to who’s returning to work, Mellk said.
“It’s important that employers be able to back up their decisions regarding the selection of who will return to the workplace with legitimate business reasons,” she explained.
Monitor Data and Trends Before, During and After Employees Return to Work
Monitoring data and trends is an essential part of a successful return-to-work strategy. Before you bring your employees back to work, Seidner suggests looking at the trends within your community. Paying attention to the positive cases and the number of tests administered can give you an idea of how your local community is handling COVID-19.
“Look at metrics that are both internal and external to the workplace, like hospitalizations, ICU numbers and case fatality rates,” Seidner explained. “Understand that we’re probably entering our fifth peak in the U.S. due to the number of unvaccinated people.”
Data tracking doesn’t stop after you let employees return to work, though. In fact, Seidner emphasized that employers should use data to help make decisions related to their return-to-work plan. You can use the data to help you decide when it’s a good time to move to the next phase of your plan. If you find there are a few positive cases as employees come back to the office, it doesn’t mean you have to panic.
“You wouldn’t need to roll back to an earlier phase even if you had a case or two,” Seidner explained. “Unless you have a whole population sick, there’s no need to do that. Instead, keep what’s in place and slow down the number of employees returning to the office.”
Once there haven’t been any outbreaks or spikes for a month, Seidner said it’s a good sign that an employer can move onto the next phase of their return-to-work plan.
Can Employers Mandate the COVID-19 Vaccine?
Companies in different industries have recently announced vaccine mandates for employees returning to work.3
- Morgan Stanley won’t allow anyone that’s unvaccinated to enter their headquarters.
- Google requires employees to get vaccinated before returning to their offices, both in the U.S. and other regions.
- Facebook employees will need to show proof of vaccination before returning to the office later this year.
- The Washington Post’s publisher announced that getting a vaccine was now a “condition of employment.”
Mellk explained that under EEO laws, employers can require employees who enter the workplace to get vaccinated. But she added that businesses have to offer reasonable accommodations to employees who don’t get the vaccine because of disabilities, religious beliefs or pregnancies.
If you decide to mandate vaccines for employees going back to work, Mellk emphasized doing your due diligence, because it can open your business to legal risks.
“Because some individual groups may face greater barriers to receiving the vaccine, you want to consider whether the mandated vaccine policy will disparately or disproportionately exclude employees based on a protected category,” she explained.
Mellk also noted that employers should be aware of local laws and regulations. In Montana, for example, the state doesn’t allow businesses to discriminate based on a person’s vaccine status or having an immunity passport. And similar bills may pass in other states.
Vaccine policies should show how your business plans to protect both vaccinated and unvaccinated employees, as well as clearly explaining how workers can request an exemption or accommodation.
“A well-received accommodation policy could help increase the likelihood of success if you have to defend a lawsuit,” Mellk said.
Vaccinated and Unvaccinated Workers
Unless every employee voluntarily discloses that they’ve received a vaccine, Seidner acknowledged that it would be difficult to know who got vaccinated.
If any of your employees are hesitant about getting the COVID-19 vaccine, Seidner said providing education and communication is key. The CDC says there are many factors behind why someone doesn’t get vaccinated, but that confidence in the vaccines, the vaccinator and the system all support the decision to get a vaccine.4
You can get resources and key messages from the CDC to help build vaccine confidence among your employees.
Be aware that quarantine and isolation recommendations change for fully vaccinated people. It’s a good idea to check the CDC for the most recent guidelines for vaccinated people.
Pay Attention to Employees’ Psychological and Behavioral Issues
Working virtually for an extended period of time, combined with local restrictions and ongoing news of the pandemic, can deeply affect a person. In February 2021, the Kaiser Family Foundation (KFF) conducted a survey to look at the impact COVID-19 had on mental health.
The organization found that 4 in 10 adults in the U.S. reported symptoms of anxiety or depressive disorder.5 This is an increase from the 1 in 10 adults that reported these symptoms from January to June 2019 – about a year before the pandemic.6
The KFF’s survey may not be surprising to some. Researchers have studied and consistently found that social isolation and loneliness were linked to worse cardiovascular and mental health outcomes.7
Lacroix pointed out that the workers coming back to the office aren’t the same workers as pre-pandemic.
“The rates of depression, anxiety, stress and grief – your employees have been carrying all of that,” Lacroix explained. “If they’re coming back, they’re coming back with that additional baggage.”
Seidner recommended that employers can work with their HR department to create a plan to help employees feel at ease. One idea is to offer an Employee Assistance Program (EAP). This gives employees access to services to help them with personal or work-related problems.
It’s also imperative for supervisors and managers to have training on how to recognize if a worker is struggling. A slip in performance may occur shortly after an employee returns to work, so managers need to be comfortable with having a conversation to understand what’s going on.
Make sure managers know about resources and services that can help employees. Encourage them to make the initial connection between the service and the employee, Seidner said.
“I call it a warm handoff,” Seidner explained. “Instead of having a manager or supervisor telling their employee that they should call this number or use this service, help them make the connection. Don’t just say, ‘Do this’ and walk away.”
Communication at All Levels Is Key
Because of public health guidelines and recommendations to reduce infections, it’s likely the workplace will be different than when employees were last in the office. There may be:
- Signs directing the flow of traffic
- More hand sanitizing stations throughout the building
- Physical barriers to encourage social distancing
- Restrictions in certain plans to limit the number of people, such as elevators
Communicating with employees on a regular basis is a key piece to a successful return-to-work strategy. Messaging should help reduce employees’ fears or anxiety, so it’s important for business leaders and executives to connect with workers. The goal, Seidner said, is to keep employees informed so they aren’t caught off guard about anything.
“There’s a need to be proactive with communication,” Seidner explained. “Explain to employees ahead of time what to expect when they return to the office. Tell them what’s changed and what the ‘new normal’ looks like.”
An Increase in Pandemic-Related Lawsuits
Jackson Lewis has seen close to 3,000 employment-related lawsuits due to COVID-19, and Mellk added that they expect to see more claims related to remote work.
Some of the most common lawsuits filed during the pandemic are related to leave or employee discrimination.8 In fact, over 83% of the lawsuits filed since January 2021 claim wrongful termination.9
Because it’s expected that pandemic-related lawsuits will continue to increase, Mellk emphasized that companies need to do their due diligence, keep proper documentation and comply with EEO laws.
“If you’re going to let an employee go, did that employee raise a concern with the health and safety plan in the workplace?” Mellk said, implying that the discharged employee potentially could have a retaliation or whistleblower claim in certain jurisdictions.
In addition, according to Mellk, communication with employees can play a key role for a business managing legal risks.
“Communication can go a long way in avoiding potential claims and lawsuits for employers,” she noted.
Employee Safety in the Workplace: A Top Priority
As employers think about work in a post-COVID-19 world, many wonder what the best way is to bring workers back to the office. Honestly, there’s not an easy answer. Every company is unique, so plans for returning to work during the pandemic will be specific to each business.
If possible, bringing employees back to work in a phased plan can help reduce transmissions among workers. Throughout the entire return-to-work process, it’s imperative that employers continue to monitor data and trends in and outside of the workplace. And to ensure for a smooth return, communicate regularly with employees about any changes or issues.
“The trends are really important, especially with variant strains in the U.S. You'll see if there’s a spike or peak in the area,” Seidner said. “So, it’s crucial that employers track this data and communicate with their employees, providing education and resources for them to use."
Looking Ahead After the Pandemic
Although employers and employees had to face various challenges in the last year and a half, there are lessons learned that companies can apply to help reduce the impact that another pandemic may have.
“Infectious diseases are out there – they always have been out there and they’re here to stay,” Seidner said during the panel. “…We need to embrace universal source controls to keep COVID outside. Cleaning, sanitation and the hybrid work model is here to stay.”
Creating a tool kit can help employers stay prepared. It will help “allow them to nimbly move back to remote work and have safety measures in place” if there’s another infectious disease event, Mellk explained. She noted New York’s HERO Act can give employers a roadmap to help create a plan to respond to the next event. The law requires employers to have a plan for managing an outbreak, including:
- Employee health screenings
- Personal protective equipment, mask use and physical distancing
- Disinfection protocols
“I think it gives employers a really good outline of what they need to deal with these (events),” Mellk said. “I do expect other states to follow suit with laws like the New York HERO Act.”
1,2 U.S. Centers for Disease Control and Prevention, “COVID-19 Vaccinations in the United States”
3 CNN, “These Companies Are Requiring COVID-19 Vaccines for Their Employees”
4 U.S. Centers for Disease Control and Prevention, “Vaccinate With Confidence”
5,6 Kaiser Family Foundation, “The Implications of COVID-19 for Mental Health and Substance Use”
7 Science Direct, “An Overview of Systematic Reviews on the Public Health Consequences of Social Isolation and Loneliness”
8 Fisher Phillips, “COVID-19 Employment Litigation Tracker and Insights”
9 JDSupra, “2,000 COVID-19 Related Employment Lawsuits Filed In the U.S.: An Analysis Of the Data and Trends”
The information provided in these materials is intended to be general and advisory in nature. It shall not be considered legal advice. The Hartford does not warrant that the implementation of any view or recommendation contained herein will: (i) result in the elimination of any unsafe conditions at your business locations or with respect to your business operations; or (ii) be an appropriate legal or business practice. The Hartford assumes no responsibility for the control or correction of hazards or legal compliance with respect to your business practices, and the views and recommendations contained herein shall not constitute our undertaking, on your behalf or for the benefit of others, to determine or warrant that your business premises, locations or operations are safe or healthful, or are in compliance with any law, rule or regulation. Readers seeking to resolve specific safety, legal or business issues or concerns related to the information provided in these materials should consult their safety consultant, attorney or business advisors. All information and representations herein are as of May 2021.
