President Biden’s Path Out of the Pandemic COVID‑19 Action Plan was soon followed by a series of guidances, directives, and additional information from the White House and from governmental entities.
Employers and their business advisors justifiably feel as though they are being bombarded with confusing and sometimes inconsistent information, all of which still leave a number of unanswered questions. If that were not challenging enough, perhaps the only certainty is that there will be new and different guidances, directives, and information issued by the government in connection with the mandatory vaccination plan and related issues. Given that reality, I believe that employers, in general, would be well‑served to keep thirteen overarching themes in mind as they navigate vaccination mandates, health and safety requirements, and other related issues.
- The President’s Vaccination Plan is bold and broad. The Plan is ambitious and includes Executive Orders for federal contractors and federal employees, employers with 100 or more employees, and certain healthcare entities, among other things.
- There is currently a fair amount of energy nationwide for mandatory vaccinations in many industries. The President’s Executive Orders appear to have given “cover” to some employers (particular several of the larger companies) that have been reticent to make a decision to mandate vaccination in the workplace.
- This is still very much a red/blue thing. Like so many things in our society, the vaccination issue continues to be embroiled in politics. Recently, the Governor of Texas issued an order prohibiting employers from mandating vaccines in the workplace. This order seems to collide directly with the President’s Executive Order pertaining to federal contractors. This collision course will no doubt find its way to the courts.
- The situation is fluid and is likely to remain so. The past eighteen months and counting have truly been a journey and that journey continues. The reality is that the most that we can do at any given point is provide a snapshot of what the Executive Orders, the guidances, and the directives look like now, with the understanding that new Executive Orders, guidances, and directives could be issued literally any day. The larger point, then, is that it is critically important that employers establish a game plan now as well as a broader mindset and comprehensive approach to addressing COVID’s impact upon the workplace.
- Vaccination is not just an issue for federal contractors and large employers (those with 100 or more employees). The reality is that employers of virtually all sizes are likely to be confronted with the issue of whether to mandate vaccinations regardless of whether they are legally required to do so. This can be a function of their geographic location; the industry that employers are in; whether they have fiduciary and other obligations to the communities that they serve, etc.
- Being proactive matters. New governmental pronouncements related to COVID are being issued with storm-like frequency. It is very difficult to comprehend all of the new governmental directives and information. It is extremely important that employers commit to staying on top of these important issues by regularly reviewing trusted resources. It is infinitely more difficult to try to tackle these issues if employers are constantly in a reactive mode.
- Manager training is key. Effective manager training has never been more important. The reality is that it is difficult in the best of circumstances to manage employees in a non‑COVID world; COVID has magnified those challenges. The dangers of not conducting effective manager training – particularly on COVID related issues such as handling requests for accommodation, disciplining employees, and the like can have wide-ranging, damaging consequences.
- Be flexible and creative. This is new territory for government regulators, insurance companies, and, yes, lawyers. It is certainly new territory for employees and their managers. Not every solution is one that you can “google.” Employers need to remain open to creative solutions for handling accommodation requests and addressing the needs of employees.
- Empathy matters. Like most other issues, employees can sense when employers are trying to “do the right thing.” In my experience, most employees appreciate that COVID has been extremely challenging not only for them, but for employers as well. Listen – truly listen – to employees. Without question, just as employees are being evaluated, so too are evaluating their employers and, more specifically, the managers to whom they report. Did the employer express authentic appreciation? Did it acknowledge the difficulties of working during COVID? Did it provide regular and helpful feedback? In a nutshell, did the employer do enough to demonstrate that it cares about its employees? The answer to this question may be the difference between whether a good employee stays or leaves.
- Communication is key. Effective and regular communication is critical, particularly with employees working remotely or in hybrid circumstances such as at client sites, etc. The opportunity to unintentionally miscommunicate with employees has probably never been higher, and the importance of effective communication has never been greater. Employers need to schedule regular times to have meaningful interactions with employees.
- Consider working with consultants and advisors. I have recommended — and my colleagues have recommended from time to time — to work with consultants to handle certain types of accommodation requests. This includes, for example, to assist in determining whether granting an employee’s accommodation request would pose a direct threat to others in the workplace, and also to explore and evaluate potential accommodation requests. These issues are difficult, challenging and new. Particularly for employers who are working with vulnerable individuals; for example, those with health conditions or those who are unable to be vaccinated – it may be extremely helpful to work with a consultant to assess health and safety ramifications.
- Factor in retention. There was a stunning article in the Washington Post this week which reported that 4.3 million people quit their jobs in August, whichis nearly 3% of the workforce. I had to read the article twice to make sure I was reading it correctly. The point of the article is that employees feel that they now have leverage to find other employment and/or that they feel as though their current employer is not properly addressing their needs. Other publications have discussed the pending tsunami of expected resignations. The long and short of it is that employees will remember how employers treated them during COVID and the vaccination issue is a large part of that consideration, and finally number 13.
- Take advantage of valuable resources. At Lerch Early, we like to believe that we provide very helpful materials and information for navigating the COVID workplace journey, but there are other excellent materials as well. One such resource, the recently established Health Action Alliance (HAA, was addressed in an article that recently appeared in The Washington Post. The article discussed the challenges that employers are having with encouraging employees to get vaccinated. The HAA is comprised of business groups, healthcare leaders, and others to assist employers in their efforts to promote vaccination. The HAA website contains valuable suggestions and strategies for, among other things, communicating with employees who may be hesitant about getting vaccinated, for using the appropriate language which may resonate with employees in discussing vaccines so as not to offend, etc. The website is: https://www.healthaction.org/resources.
In summary, if employers keep these 13 overarching themes in mind, it will enable them to do the following:
- Develop a set of core principles and strategies for dealing with COVID-related issues.
- Develop a set of practices and procedures for dealing with COVID-related issues.
- Save time and money addressing COVID related issues.
- Help in their employee retention efforts.
- Help make them a more attractive place for applicants.
Marc R. Engel is an employment attorney experienced in providing successful strategies for managing employees and preventing employment claims. For more information, contact Marc at 301-657-0184 or [email protected].