Tag: small business

How to Make the Best Use of Your Employee Handbook

Posted on by AllMyHR
employee handbook - blog header

Employee handbooks are a nifty communication and reference tool for the workplace, but only if they’re used and not collecting dust on some physical (or digital) shelf. A handbook is only as good as what it does. At the minimum, it should do the following:

Introduce employees to the fundamentals of your organization’s culture—the beliefs and values that members of the organization are expected to share. This introduction explains what you do and why you do it. It may also give employees a look into the history of your organization, how you got to where you are, and where you intend to go. Last but not least, it gives employees an idea of how they can contribute to the culture.

Communicate to employees what general behaviors and procedures are expected of them. These include general safety responsibilities, confidentiality expectations, timekeeping processes, reporting procedures, dress codes, and any other ways of doing things at your organization.

Educate employees about what they can expect from the organization’s leadership. Executives, managers, and HR departments have obligations to their employees—both those they’ve established themselves and those required by law. A good handbook tells employees what those obligations are and how they will be met. If your employees are entitled to leaves or accommodations, for example, your handbook should explain these.

Support consistent enforcement of company policies. Employers expose themselves to risk when they interpret, apply, or enforce policies inconsistently. Transparency about policies and how they are enforced helps keep everyone accountable and the enforcement of rules consistent across the company.

Showcase the benefits the organization offers. Does your organization offer vacations, 401(k), health insurance, paid parental leave, or other employee benefits? If so, your handbook should outline these programs and their eligibility requirements.

Let employees know where to turn for help. Employees should feel safe turning to HR or a manager to report workplace violations, get workplace-related assistance, and get answers to any other questions they may have. The alternative is for them to turn to an outside third party, like the EEOC, the DOL, or an attorney, which could trigger a costly and time-consuming investigation. When a handbook provides multiple ways for an employee to lodge a complaint (ensuring they won’t have to report the problem to the person creating the problem), they are more likely to keep their complaints in-house.

How do I keep my handbook compliant?

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Avoiding Burnout When You Work in HR

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avoiding burnout

If you work in HR, you know that employee burnout remains pervasive. You also know that the task of supporting overly stressed employees often falls on your shoulders. But you’re exhausted too. Burnout isn’t just a problem you have to help others solve; you also have to solve it for yourself. Here are seven ways to do that.

Set Boundaries

First and foremost, set boundaries. You cannot possibly be all things to all your people, available at all times no matter the cost. That’s not your job. More to the point, your job is not the supreme ruler of your time. Having a job means that you’ve committed to using some of your time to complete a certain amount of work, but you should still think of that time as yours. After all, it’s your life, your energy, your health. Don’t feel bad about giving time to your needs just because you’re working. The mindset that you can never prioritize your needs while on “company time” is an unhealthy one.

Place boundaries around both the time during which you work and what you spend your time doing while working. If you say that you’re done with work at 6 p.m., don’t do any work after 6 p.m. Emails and Slack messages can wait until the next workday. If people at work need to be able to reach you in an emergency, establish a specific way for that to happen (e.g., a call or text to your cell) and make sure the people who may contact you know what qualifies as an emergency and what doesn’t.

You can set boundaries during the workday by delegating tasks that don’t need to be done by you. HR is a big job for one person or even one department. Not every personnel issue even should be handled by you. Managers and department heads should be able to handle a lot of those issues themselves, and only come to you for help if it’s actually needed. If they are bringing you so many small problems that you don’t have time to resolve the big ones, you may need to set different expectations or train managers to resolve certain issues themselves. If you’re having to manage employees for them, they’re not doing their jobs (and may need to be developed or replaced).

Know What You Can and Cannot Control

In HR, we often feel responsible for everything related to employees. If there’s an issue, it’s on us to address it. A problem? We own the solution. Something not improving? We’re at fault. This belief that we are responsible for all the things causes stress to mount and leads to burnout. It also isn’t true.

We can’t be responsible for what we can’t control, and so much that happens in the workplace is simply out of our control. It’s vital—both for our work and our mental health—for us to know what is and isn’t in our power to change. If employees are quitting as a result of ineffective workplace policies, and you have purview over those policies, you can probably do something about this attrition. But if they’re quitting because there are better opportunities for them that your organization can’t match, there may be nothing you can do. Spending time trying to solve unsolvable problems isn’t going to have a good return. Or, as the old saying goes, if there is no solution, there is no problem.

Implement Clear and Simple Policies and Practices

The more ambiguous or complex your workplace policies and practices are, the more questions people will have about what they mean or require. If you find that your people often come to you asking what they’re supposed to do in a given situation, look at what you can do to answer their questions proactively. Do you have an employee handbook? Standardized practices for managers? Granted, some employees aren’t going to read any policy documents you give them, but in general you can save yourself (and others) a lot of time by defining policies and practices so that they are clear, accessible, and easy to follow. Accordingly, you should ensure that leaders are aware of where the handbooks, policies, and guidelines reside so that employees may self-serve whenever possible.

Train Your Colleagues

Being the only one who can do a certain essential task may be good for your job security, but it isn’t good for your health. If no one else can do what you do, you can’t truly get away or be guaranteed to focus on one task to the exclusion of all others. People can only cover for you if they have the knowledge and skills to complete the tasks you need covered.

Realistically, you can’t plan for every contingency, but teaching colleagues the skills and knowledge they’d most likely need when covering for you increases the likelihood that they’ll be able to handle whatever arises while you’re away or focused on an urgent project.

Take Time Off

Speaking of getting away, take time off. You need a break from work as much as anyone—maybe more so—and you don’t need to justify it. You don’t have to feel sick or especially overwhelmed or have something special planned. Breaks from work are good for you, period. If you feel the need to justify a break from work, take time off to set a good example to everyone else that they should be taking time off too.

When employees see leaders in their organization taking ample time away from work, they feel more confident taking time off themselves. That helps save those employees from burnout, which in turn saves their leaders’ time.

Connect with Other HR Professionals

Working in HR can be a lonely profession, especially if you’re a department of one. When you’re in HR, friendships at work range from tricky to ill-advised. You may not have anyone at work you can really open up to or who appreciates the challenges of your job. Fortunately, there’s an active community of HR professionals online who are more than happy to share ideas, answer questions, or just listen. You can find them on LinkedIn, Twitter, and elsewhere by searching #hrcommunity or #hr. They’re a friendly and chatty bunch, eager to converse about the latest trends, specific pain points, and the generally daunting challenges of working in HR.

Consider following a few HR practitioners, participating in a conversation, or just watching from the sidelines until you feel more comfortable. It’s not quite the same as having a close friend at work, but what it lacks in close proximity, it makes up for in shared experience.

Treat Yourself

“I’m going to let you in on a little secret,” Special Agent Dale Cooper says to Sherriff Harry S. Truman in the television series Twin Peaks. “Every day, once a day, give yourself a present. Don’t plan it. Don’t wait for it. Just let it happen.”

The present doesn’t have to be extravagant. Cooper’s examples include a catnap in one’s office chair and taking a few minutes to enjoy a nice hot cup of coffee. Yours might be a 20-minute walk to get some fresh air and Vitamin D. The point is to be not just reasonable, but generous with yourself every day. The work we do in HR is stressful, emotionally taxing, and tiring. We spend our days supporting others in difficult situations. Our job is giving time, comfort, and care to others. It’s important to give those things to ourselves too.

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Turning the Great Resignation Into a Great Re-engagement for Your Company

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great resignation

“Help Wanted” signs – virtual or storefront – are everywhere. In 2021, millions of American workers quit their jobs, including a record 4.5 million in November alone, a 30% increase over the same month last year. Perhaps more startling, another 65% of Americans are looking for a new job. Predicted back in May 2021, the Great Resignation is underway.

But that’s only half the story. Business hiring is also at record levels. Most Americans aren’t simply quitting their jobs and leaving the workforce. They’re pursuing new roles and companies, or opportunities in new industries altogether.

There are many theories for what’s causing Americans to do this. One of the most prevalent I’ve seen is the “epiphany” theory. The COVID pandemic, like other disruptive events, caused people to reexamine their needs and priorities, and make life changes accordingly. Perhaps it’s spending more time with family, aligning their work with their personal values and interests, staying home to take care of children, having more flexible hours, or moving somewhere new.

Employers are scrambling to keep up. In the face of unprecedented employee turnover, supply chain challenges, new federal and state regulations, and pandemic protocols, their patience is wearing thin. It’s tempting for businesses to bemoan their employees’ reordering of priorities – and willingness to leave their jobs because of it – as entitled, short-sighted and ill-timed. The Great Resignation, the prevailing wisdom says, is a thorn in employers’ sides.

But what if the Great Resignation wasn’t just an opportunity for employees to build a more purpose-driven and engaging career and life? What if it was also an opportunity for employers to build a more purpose-driven and engaged company?

Over a decade ago, online retailer Zappos gained fame when it pioneered the “pay-to-quit” concept: paying employees a bonus if they left their jobs. Zappos believed it would be better off if employees who weren’t dedicated to the mission, values, and work simply opted-out. As then-CEO, Tony Hsieh, wrote in his book Delivering Happiness, “Our goal at Zappos is for our employees to think of their work not as a job or career, but as a calling.”

Now the pandemic is doing organically what Zappos and other businesses have been doing artificially: prompting workers to ask themselves whether their jobs and companies are the right fit, and causing them to make changes if not. If managed effectively, employers can turn The Great Resignation into a renaissance for their teams and companies, creating a more engaged, productive, cohesive, and loyal team in the process.

Here are 6 steps business leaders can take to turn the Great Resignation into a Great Re-engagement for their companies:

  1. Embrace the Change. The labor market will not always be as tight as it is today, but the world of work is fundamentally and permanently changing. For companies to emerge stronger from this period than they were when they entered it, leaders need to embrace the idea that employees are key stakeholders in their organizations. And just like shareholders or customers, employees’ needs and goals need to be understood and addressed as a strategic and cultural commitment. Only then will businesses be able to leverage the current environment and maximize organizational success.
  2. Conduct Stay Interviews. Many companies conduct “exit interviews” to learn why employees leave the organization. It’s important to invest the same time, attention, and curiosity in employees who have not chosen to leave. “Stay interviews” are 1:1 meetings between managers and their employees to discuss what’s going well, what’s not going well, and what changes the employee, the manager, or the organization could make to strengthen the relationship. These meetings require a foundation of trust between the employee and their manager, and are most effective if they are recurring, not one-off, conversations.These conversations should also not be constrained simply to job responsibilities. To achieve a Great Reinvigoration, managers and employees need to open lines of communication about employees’ life goals and values, and how both can be furthered at the organization, or even at a different organization. For example, a manager might learn that one of their employees has a dream of writing a novel or has a family member they need to care for. By opening the dialogue, the manager can help the employee connect or adapt their current role to their goals and needs, or discuss whether there are other roles or even other opportunities that might be a better fit. Sometimes the most powerful conversations occur in discussing opportunities outside the company, as that’s when an employee understands their manager is truly invested in their success.
  3. Don’t Chase. If an employee has decided that they don’t want to stay with the company, it’s generally better to support them in departing gracefully than in pulling out the stops to keep them. The pay-to-quit programs at Zappos, for example, not only don’t chase employees, they nudge them out the door. The key, of course, is to make sure the employee has full information about the direction the company, their team, and their role is heading. If they do, and they choose to leave anyway, trying to “save” an employee risks retaining employees who are not fully bought in, putting a band aid over underlying issues, and undermining the company’s ability to achieve a Great Re-engagement.
  4. Be as Intentional in Hiring as Your Candidates are in their Job Search. American workers are reevaluating their priorities, values, and goals, and are looking for opportunities that better support and align with them. This is a perfect environment to hire employees who will engage in their work at a deeper level and for a longer period of time, assuming you find a match. The key is to adapt your recruiting and hiring processes to find these people. For instance, make sure the interviewing process invites a dialogue with the candidate about not just having the right competencies and capabilities, but also about what’s important to them from a culture, values, team, expectations, and responsibility perspective, so both you and the candidate have confidence that the company and role fit their reexamined priorities.
  5. Shift Dollars from Recruiting to Training. After factoring in recruiting, hiring, onboarding, and lost productivity, the cost of replacing an individual employee is at least 50% of that employee’s annual salary. For employees who are performing well, consider reallocating a portion of what you would spend to replace them from your recruitment budget to expand your training budget. The training could focus on upskilling an employee who is looking to advance their current focus, or reskilling an employee who would have better opportunities in a different career track. Most workers want to grow their skills and will value an opportunity that allows them to do so. Set aside an annual training budget and engage your employees in discussing the best ways to use those resources to further both their and the organization’s goals.
  6. Invite Your Employees to be Co-Creators. Ten years ago, researchers discovered that consumers more highly value products they invest their own time, energy, and creativity in than “off-the-shelf” products. Called the IKEA effect, this same principle also applies to employee engagement and retention. People value organizations more highly if they are part of building them, whether it be their culture, processes, innovation, team, or strategy. To turn The Great Resignation into a Great Reengagement for your company, engage your team more fully in the process of building an organization that serves both their and your customers’ and shareholders’ needs. Turn organizational decisions or initiatives over to employee task forces or informal leaders, or simply empower employees to do things such as define the company’s values or develop programs. Given that people are investing so much though in their lives and work, now is an ideal time to hear their ideas and engage them in bringing them to fruition.

Make no mistake: with millions of American workers leaving their jobs each month, it’s a challenging time for employers. But it’s also an opportunity, one that leading employers like Zappos have previously invested in.

By embracing the moment, rather than ignoring or trying to resist it, employers can turn the Great Resignation into a Great Re-engagement for their businesses, and emerge with a new strategic advantage: a more engaged, productive and loyal workforce.

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The Rewards of Trust and How to Get Them

Posted on by AllMyHR

Why do people stop trusting in one another? And what happens to a team when trust disappears? To answer these questions, let’s start with a fable.

About a year ago, Abigail began her first day on a new job. She was a software engineer, new to the workforce, and eager to make a good impression on her colleagues. At the end of the day, she noticed a fine, jagged line on the floor of the office, stretching the length of the building. She examined it, puzzled. She was pretty sure she hadn’t noticed it earlier, and almost as sure that it hadn’t been there when she’d arrived. For a moment she considered asking someone about it, but she didn’t feel comfortable inquiring about structural integrity on her first day.

Truth be told, she wasn’t the only employee who noticed the jagged line, and it had just appeared that day. But no one else had brought it up.

The next morning, the line had grown to an unmistakable crack. Javier, another software engineer, saw it straight away and thought about mentioning it to his supervisor, but the last time Javier spoke up about a problem, his supervisor had scolded him for not also presenting a solution. He had no solution, so he said nothing.

Dipendu thought he had an easy fix for the ugly crack, but he too was hesitant to speak up. The last time one of his designs hadn’t worked out as planned, the executive team was livid, and his manager threatened to demote him if his work ever failed again. Lupita, a senior designer, also had a solid idea for repairing the crack, but she’d seen too many of her good ideas stolen by others in the company, who received the credit for her ingenuity. Both Dipendu and Lupita kept quiet.

As the days passed, the crack expanded several inches. Everyone stepped over it as nonchalantly as they could so as not to acknowledge its existence. After a few weeks, the rift was several feet wide, and HR quietly updated job descriptions to say that the physical requirements of every job might entail some jumping.

Finally, after office supplies, a laptop, and Fred got lost in the rift, management decided to acknowledge the issue. But its message was inconsistent. In some instances, management seemed to take the gap seriously and promised it prompt attention. At other times, management seemed less committal. Only after an OSHA inspector showed up on an anonymous tip and summarily disappeared into the rift did company leadership clarify their position. Whatever the cause of the still-growing crack, employees were at fault for not speaking up sooner, and they’d just have to live with the consequences.

The consequences, however, were not sustainable. Valuable team members and intellectual property got lost in the abyss, electrical wires and phone lines got disconnected, and team meetings involved a lot of shouting over the gap. Soon everyone only communicated if they absolutely needed to, and oftentimes not even then.

What happened to this company may sound farfetched, but the rift is real . While you probably won’t find gaping holes in workplace floors, you will find trust destroyed by broken promises, lies, spin, retaliation, and inconsistency. And when trust is lost, relationships and teams break apart. In the workplace, people keep their distance from others, withholding information, refraining from identifying problems, and erecting barriers to protect themselves. In short, they stop working together.

Benefits of Trust

The whole point of forming a team is to facilitate cooperation. Trust is the foundation of that cooperation. With trust, teams increase their productivity, improve their ability to communicate and collaborate effectively, act more creatively, delegate work more easily, and achieve greater financial success. Trust enables teams to accomplish what they’re designed to accomplish. Trust creates a sure footing for success. But without trust, cooperation cracks, shatters, and dies. People can’t act as a team.

Building Trust

Trusting your employees and gaining their trust isn’t easy. As Wendy Dailey says, it takes time and effort. It’s work.

But trust is achievable. And worth it. We human beings are social animals, after all. It’s normal for us to trust one another. All of our social institutions require it. That’s one reason violations of trust feel so wrong and hurt so much. They cause rifts in friendships, romantic partnerships, families, neighborhoods, churches, teams, and other organizations. And yet those rifts are not the norm. They’re not what we typically expect. In the workplace, we expect to be able to trust our teammates, at least as far as work is concerned. So how do we get there? Let’s examine a few practical ways to build trust at work.

Learn What Trustworthiness Means to Your Employees
Laurie Ruettimann, author of Betting on You and host of the Punk Rock HR podcast, advises organizations “to learn more about how their employees define, value and evaluate trustworthiness — and act on it.” What establishes and strengthens trust with one employee may be different than what builds trust with another. For one thing, every employee has their own reasons for being an employee of their organization and expectations for what that relationship entails. For another, everyone has their own experience with building and losing trust. All else being equal, gaining the trust of someone who’s had their trust in others betrayed will be more difficult than gaining the trust of someone who’s not experienced such devastating betrayals. It’s vital to understand these differences.

Build Relationships on Authenticity, Logic, and Empathy
Executive coach Sarah Noll Wilson offers similar guidance. There is “a complexity to trust because what everyone values and what they need is going to be different based on every situation,” she writes. Her team recommends a framework they call the ‘Trust Triangle.’ We build high-trust relationships at work by being authentic about our values and impact, logical in how we’ve come to our conclusions, and empathetic in all our interactions.

Give Employees Your Time and Attention
Consider this simple advice from HR author and speaker Steve Browne: show “a little respect.” Respect brings people together. It empowers people to trust. We show people respect in the workplace by “acknowledging that their efforts make an impact and meaningful difference to the success of the company.” For Browne, we engage people with respect by giving them two things: “our time and attention.”

Acknowledge People’s Emotions
Researchers Alisa Yu, Julian Zlatev, and Justin Berg arrived at much the same place. Writing in Harvard Business Review, they explain that the best way to build trust at work is to acknowledge other people’s emotions. Acknowledging another’s emotions communicates that you “care enough to invest in that relationship.” Interestingly, the authors found that “acknowledging negative emotions boosts trust more than acknowledging positive emotions.” Why? Because most people “see acknowledging negative emotions as being more costly in terms of time, attention, and effort.” Acknowledging emotions can backfire, however, if “your coworkers believe your actions are motivated by selfish reasons.”

Act with Transparency, Clarity, and Consistency
We trust others when we believe that they are worthy of that trust — when we believe that they are honest, good, reliable, faithful, compassionate, and fair. How do we inspire others to believe that we are trustworthy? By keeping our promises. By being transparent about our decisions, clear about our expectations, and consistent in our practices.

Believe in Your People
Trust can’t go just one way. Rifts in the workplace will form if trust isn’t reciprocal. That means that we also have to show employees that we trust them. This can be challenging because we’re often inclined, and not unreasonably, to perceive employees as costs, risks, and liabilities. And yes, they certainly can be, but they’re also any company’s greatest asset. If we treat employees only as a danger, we tell them loud and clear that we don’t trust them.

The alternative? Find strength in vulnerability. Acknowledge the rights of your employees and your responsibilities to them (the employee handbook is a convenient place to do this, but your overall attitude matters too). Invest in their growth and success. Celebrate their wins. Give them reasonable opportunities to mend mistakes and make up for failures. In sum, treat employees like you trust them to do good work. Will some betray that trust? Yes. But that’s on them. Believe in them, and you’ll inspire trust. Assume betrayal, and you’ll get something else.

Trust enables people to work together. Pour everything you can into that foundation. You’ll build stronger and more productive relationships with your employees, notice and mend cracks more quickly, enhance the capabilities of your team, and achieve greater success.

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Creating a Safe and Fulfilling Workplace for Another Challenging Year

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safe and fulfilling workplace

As we enter the new year, the risks of COVID-19 may recede, but the trauma, pain, and disruptions of these past two years will still be with us, affecting our lives and our work. We’ve all struggled, sometimes in ways we can’t pinpoint.

In her book Bearing the Unbearable, Joanne Cacciatore describes grief as “a process of expansion and contraction.” Cacciatore explains that in a moment of contraction, we may feel unsteady and unsafe, and we “feel the call to self-protect.” In a moment of expansion, we “become more willing to venture out and explore” and “take risks.” This process isn’t exclusive to grief, of course. Whatever the cause, many of us right now are experiencing one or the other, or both.

A recent guest on the HR Social Hour Half Hour Podcast, Julie Turney, founder and CEO of HR@Heart Consulting, observed that people today recognize that they deserve better, and they are demanding better. They are less willing to settle, less comfortable with the way things are. People are fleeing jobs that are physically or psychologically unsafe. Others are chasing their dreams with a newfound passion.

For the foreseeable future, people will seek environments that are both flexible and strong enough to support a process of contraction and expansion. They will desire work that gives them a safe place to be and a fulfilling place to go. They will crave a future they can own and a course they can chart, and their jobs will either help or hinder them. Jobs that help them will be in high demand.

Fortunately, such sought-after work environments can be achieved with some basic practices. Let’s look at some.

Talk About the Future

Ask your managers to talk regularly with their direct reports about how they’re feeling today and what they’d like to be doing in the future. Due to the circumstances, you can expect the answers they hear to vary and to change. On a given day, an employee may feel optimistic and ambitious, eager to take on a new project or a new role. But a week later, that same employee may feel hesitant or anxious about taking on any new responsibilities.

Don’t assume an employee expressing conflicting feelings isn’t up for the task at hand. In normal times, it’s natural to second guess big decisions, and these are not normal times. Some employees may need a little extra encouragement. Others may truly be happier continuing to do what they’ve been doing.

Through these conversations, managers can help their people make informed decisions about their future that make sense for them and for the company.

Don’t Be Afraid to Set Deadlines

Giving employees time to decide what future makes the most sense for them can go a long way to building trust and gratitude. There will come a time, however, when a decision needs to be made. A manager who has been talking with a member of their team about a new career opportunity in another part of the company, for example, will need a definitive answer eventually, probably sooner rather than later. When a manager has a conversation with a team member about opportunities for growth that require significant change, they should, as soon as possible, make it clear to the employee when a final decision needs to be made. That way the employee has a set timeframe to work through their feelings, and a deadline isn’t unexpectedly thrust upon them.

Provide Grief Support

A lot of people are grieving, and grief takes work. People grieving need the time, space, and freedom to do that work. The option to take bereavement leave after a loss can be invaluable to them, but so too is the liberty to take days off down the road when they’re needed. The grieving process isn’t linear, and the unbearable pain of grief can resurface unexpectedly, months and years later. The life of grief is long. Whatever you can do to enable employees to safely take the time they need to process a loss and heal, do it.

Take Care of Yourself and Your HR Leaders

Lars Schmidt, founder of Amplify, points out that, while the “market for HR roles has never been hotter,” the work of HR has taken a “sustained toll” on those doing that work. They’re “carrying the emotional burdens of their employees (and their own).” Burnout is common. Be sure to give yourself and anyone else caring for your people time to rest, recharge, grieve, or whatever else each of you needs to do to stay healthy. “Resilience is not an infinite resource,” executive coach Sarah Noll Wilson reminds us. Take time off. You need it, too.

Don’t Take Departures Personally or Draw the Wrong Conclusions

When an employee leaves an organization, it’s always a good idea to understand why and consider what changes you could have made to keep them. What you learn may not persuade that employee to reconsider their departure, but it may assist you in keeping others. That said, sometimes employees quit and there’s nothing you could have done to convince them to stay. The best possible workplace in the world will still see people go elsewhere simply because those people want a change or because of circumstances beyond their control.

When your employees tell you they’re leaving, do your due diligence to find out why, but don’t overthink their departures or take them personally. If everything was good and they still left, that just means everything was good and they still left. It doesn’t mean that you didn’t do enough or should have done something differently. Believe in the work you’re doing. Be kind to yourself. As Lars Schmidt says in his book Redefining HR, “we’re on the front lines of the highest of highs and the lowest of lows of all our employees.”

Inspire Hope

Whether we feel the strong urge to self-protect or we’re jumping out of our seat to pursue a risky venture, we could all use a little hope. The philosopher David Utsler writes, “Hope offers no guarantees. Hope does not promise that life or the world will get better. Hope only insists on the possibility.”

You can inspire hope by expanding the scope of what is possible for your employees. Talk with them about their dreams and ambitions so they can imagine what possibilities lie before them. Talk about where your company is going and what you’ll need from your employees. Help them envision a place where they can explore, take risks, and be supported.

Then work together to get there.

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COVID-19 Vaccine Mandate News and FAQ

Posted on by AllMyHR
COVID-19 Vaccine Mandate News and FAQ

The President’s COVID-19 Action Plan

On September 9, 2021, President Biden released his COVID-19 Action Plan requiring all employers with 100 or more employees to ensure their workers are vaccinated or tested weekly. According to the president, “The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement.”

The ETS will also require employers with more than 100 employees to provide paid time off for workers to get vaccinated or recover from vaccination.

We are actively monitoring for the details of President Biden’s COVID action plan. Here is what we know and don’t know:

What We Know

  • The mandate applies to employers with 100+ employees.
  • It requires mandatory vaccination or weekly testing to come into work.
  • It also requires paid time off to get vaccinated and recover.
  • Fines will be assessed.
  • If you have fewer than 100 employees, no federal contracts, and no healthcare workers, these new federal requirements do NOT apply to you.

What We Don’t Know

  1. How do employers count to 100?
  2. Do remote employees have to get vaccinated or tested?
  3. What kind of proof do employers need to require?
  4. Do employers need to do “due diligence”?
  5. Will testing be done at home or at work?
  6. Who pays for testing?
  7. Will there be any funds or tax credits available?
  8. What are the recordkeeping requirements?
  9. Can employees claim religious exemptions from testing?
  10. How will fines be assessed?
  11. Will OSHA have the staff to enforce this?

FAQ

How should employers address pushback from their employees (or others) about having to follow the vaccine mandate?
  • Put someone in charge of the whole process and make sure that complaints go to them. Don’t count on your frontline managers to know how to deal with escalations. They aren’t trained for that, and it’s not fair to them.
  • Emphasize that this is a federal government requirement and that you have no choice about whether or not to comply. You can also emphasize that penalties may be very steep – so steep that even one or two violations could put the business in jeopardy.
  • Focus on the fact that this is about safety. If employees don’t want a vaccination, there is a simple alternative, but in order to ensure that the workplace is safe with highly infectious Delta making the rounds, vaccination or testing must be done.
How do I accommodate an employee if all of my clients require employees are vaccinated?

We recommend speaking with your clients about possible accommodations for those employees who request an accommodation for a disability or sincerely held religious belief. Federal law generally requires employers to provide accommodations for employees for these reasons unless doing so would cause an undue hardship. There isn’t an exception for client requirements, which puts you between a rock and a hard place.

 

The first step is asking your client about potential exceptions to their mandatory vaccination requirement. If your client says that they will not grant any exceptions, we recommend placing employees who require a religious or disability accommodation with a different client. If all your clients require employees to be vaccinated without exceptions, possible accommodations might be to reassign the employee to a vacant position that they‘re qualified for or to place the employee on a leave of absence. Either way, you should discuss the available options with the employee.

 

If the only option is leave, you’ll want to discuss the length of leave with the employee (it might be temporary, as with pregnancy). The estimated duration will help you evaluate whether granting leave would cause an undue hardship.

How is the Delta variant different than regular COVID?
  • The Delta variant is twice as contagious as original COVID.
  • Fewer people have a cough or loss of smell, more people have headaches, sort throats, and runny noses (looks more like the common cold).
  • It appears that Delta may cause more severe illness in unvaccinated people than the original.
  • Delta appears more likely to cause breakthrough infections for the fully vaccinated, but the vaccines remain highly effective against severe illness, hospitalization, and death from Delta.
  • When a vaccinated person catches Delta, their viral load is as high as an unvaccinated person for a time (unlike earlier strains of COVID), but it goes down faster than for the unvaccinated, so they will be infectious for shorter periods of time.
What should I do if an employee says they can’t get vaccinated due to a religious belief or disability?

Assuming no state law or collective bargaining agreement prohibits it, employers can generally require employees to get the COVID-19 vaccine as a condition of continued employment, although they may need to make exceptions for employees who can’t get vaccinated because of a sincerely held religious belief, disability, or possibly pregnancy.

 

Religious Belief

Title VII of the Civil Rights Act of 1964 requires employers that have 15 or more employees to accommodate employees’ religious beliefs that are sincerely held if it doesn’t create an undue hardship. Title VII defines religion very broadly. It includes traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism. It also includes religious beliefs that are new, uncommon, not part of a formal church or sect, or only held by a small number of people or possibly just one person.

 

Here’s the basic framework. If the answer is no to any question, generally no accommodation is required; if the answer is yes to all questions, an accommodation is required.

  • Does the person have a belief that is religious?
  • Is the belief sincerely held?
  • Can an accommodation be made that would enable the employee to do the job, without creating an undue hardship?

 

According to the Equal Employment Opportunity Commission (EEOC), employers should generally assume that the employee’s religious belief is sincerely held, but if “they have an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer would be justified in seeking additional supporting information.”

 

Under Title VII, undue hardship is defined as “more than a de minimis cost.” The EEOC explains this further in its guidance here.

 

Disability
The Americans with Disabilities Act (ADA) generally requires employers to provide accommodations to employees who have disabilities to enable them to perform the essential functions of their job, provided the accommodation doesn’t create an undue hardship. The definition of disability under the ADA is pretty broad and includes both physical and mental disabilities.

 

If an employee requests an exception to your mandatory vaccination policy because of a disability, then you would be required to engage in the interactive process. The interactive process is essentially an ongoing conversation with the employee to explore potential accommodations. You can require the employee to provide documentation from their health care provider confirming that the employee’s health condition prevents them from getting vaccinated and, if temporary, an estimate of the expected duration of the need for the accommodation.

 

The company would then determine whether it’s possible to make an accommodation that would enable them to perform their essential functions without creating an undue hardship.

 

Safety Assessment
Companies who are considering excluding unvaccinated employees from the workplace will ultimately need to assess whether allowing an employee to be unvaccinated, while engaging in other safety measures, would pose a direct threat in the workplace.

 

We recommend reviewing the EEOC’s guidance on what qualifies as a direct threat before making this determination. If you conclude that allowing an employee to remain unvaccinated rises to the level of a direct threat, then you are required to evaluate whether potential accommodations would eliminate that threat or reduce it enough so that it no longer meets the standard of being a direct threat. If no accommodations exist that would reduce the threat sufficiently (without creating an undue hardship), then you wouldn’t be required to make an exception for the employee.

 

If you believe there is no accommodation that will make it safe enough for that employee to be in the workplace, and they are not able to work from home, we recommend working with an attorney to assess the risk of termination or exclusion from the workplace.

 

Documentation
Employers should keep documentation as to how their determination to grant or deny a request for an exception to their mandatory vaccination requirement was made, which could include:

  • Accommodation request form and supporting documentation, if any
  • Emails to/from the employee about their request
  • Notes on the employer’s decision-making process
What do I do if I have doubts about the legitimacy of a religious accommodation request?

Title VII of the Civil Rights Act of 1964 requires employers that have 15 or more employees to accommodate religious beliefs that are sincerely held if it doesn’t create an undue hardship. Title VII defines “religion” very broadly. It includes traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism. It also includes religious beliefs that are new, uncommon, not part of a formal church or sect, only held by a small number of people (and maybe even just one person).

 

We understand it can be challenging when you’ve received a religious accommodation request that you have reason to doubt. We’re happy to give some general guidance but are unable to give definitive guidance as to whether this employee has a sincerely held religious belief or whether you would be required to provide an accommodation in this situation. We recommend speaking to legal counsel to help you make this determination.

 

According to the Equal Employment Opportunity Commission (EEOC), employers should generally assume that the employee’s religious belief is sincerely held, but if “they have an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer would be justified in seeking additional supporting information.”

 

Typically, the following are not considered religious beliefs and therefore don’t require an exemption from your mandatory vaccination policy:

  • Political beliefs (e.g., “Vaccination infringes on my personal liberty.”)
  • Personal preferences (e.g., “I prefer to risk getting COVID rather than getting vaccinated.”)
  • Medical beliefs (e.g., “COVID isn’t that bad.”)
  • Concerns about the vaccine’s Emergency Use Authorization (EUA) status (if the employee can’t access a vaccine with regular FDA approval)
  • Conspiracy theories (e.g., “COVID is a hoax.”)

 

Please note that there could be overlap between a sincerely held religious belief and another belief, such as a political belief—that overlap does not place it outside the scope of Title VII’s religious protections.

 

We recommend documenting the information you used to make an accommodation decision.

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Employer Medicare Part D Notices Are Due Before October 15, 2021

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Medicare Part D

Purpose

Medicare began offering “Part D” plans — optional prescription drug benefit plans sold by private insurance companies and HMOs — to Medicare beneficiaries many years ago. People may enroll in a Part D plan when they first become eligible for Medicare.

If they wait too long, a late enrollment penalty amount is permanently added to the Part D plan premium cost when they do enroll. There is an exception, though, for individuals who are covered under an employer’s group health plan that provides creditable coverage. (“Creditable” means that the group plan’s drug benefits are actuarially equivalent or better than the benefits required in a Part D plan.) In that case, the individual can delay enrolling for a Part D plan while he or she remains covered under the employer’s creditable plan. Medicare will waive the late enrollment premium penalty for individuals who enroll in a Part D plan after their initial eligibility date if they were covered by an employer’s creditable plan. To avoid the late enrollment penalty, there cannot be a gap longer than 62 days between the creditable group plan and the Part D plan.

To help Medicare-eligible plan participants make informed decisions about whether and when to enroll in a Part D drug plan, they need to know if their employer’s group health plan provides creditable or noncreditable prescription drug coverage. That is the purpose of the federal requirement for employers to provide an annual notice (Employer’s Medicare Part D Notice) to all Medicare-eligible employees and spouses.

Employer Requirements

Federal law requires all employers that offer group health coverage including any outpatient prescription drug benefits to provide an annual notice to plan participants.

The notice requirement applies regardless of the employer’s size or whether the group plan is insured or self-funded:

  • Determine whether your group health plan’s prescription drug coverage is creditable or noncreditable for the upcoming year (2022). If your plan is insured, the carrier/HMO will confirm creditable or noncreditable status. Keep a copy of the written confirmation for your records. For self-funded plans, the plan actuary will determine the plan’s status using guidance provided by the Centers for Medicare and Medicaid Services (CMS).
  • Distribute a Notice of Creditable Coverage or a Notice of Noncreditable Coverage, as applicable, to all group health plan participants who are or may become eligible for Medicare in the next year. “Participants” include covered employees and retirees (and spouses) and COBRA enrollees. Employers often do not know whether a particular participant may be eligible for Medicare due to age or disability. For convenience, many employers decide to distribute their notice to all participants regardless of Medicare status.
  • Notices must be distributed at least annually before October 15. Medicare holds its Part D enrollment period each year from October 15 to December 7, which is why it is important for group health plan participants to receive their employer’s notice before October 15.
  • Notices also may be required after October 15 for new enrollees and/or if the plan’s creditable versus noncreditable status changes.


Preparing the Notice(s)

Model notices are available on the CMS website. Start with the model notice and then fill in the blanks and variable items as needed for each group health plan. There are two versions: Notice of Creditable Coverage or Notice of Noncreditable Coverage and each is available in English and Spanish:

  • Model Notice for Group Plan that is Creditable Coverage (English)
  • Model Notice for Group Plan that is Noncreditable Coverage (English)
  • Model Notice for Group Plan that is Creditable Coverage (Spanish)
  • Model Notice for Group Plan that is Noncreditable Coverage (Spanish)


Employers who offer multiple group health plan options, such as PPOs, HDHPs, and HMOs, may use one notice if all options are creditable (or all are noncreditable). In this case, it is advisable to list the names of the various plan options so it is clear for the reader. Conversely, employers that offer a creditable plan and a noncreditable plan, such as a creditable HMO and a noncreditable HDHP, will need to prepare separate notices for the different plan participants.

Distributing the Notice(s)

You may distribute the notice by first-class mail to the employee’s home or work address. A separate notice for the employee’s spouse or family members is not required unless the employer has information that they live at different addresses.

The notice is intended to be a stand-alone document. It may be distributed at the same time as other plan materials, but it should be a separate document. If the notice is incorporated with other material (such as stapled items or in a booklet format), the notice must appear in 14-point font, be bolded, offset, or boxed, and placed on the first page. Alternatively, in this case, you can put a reference (in 14-point font, either bolded, offset, or boxed) on the first page telling the reader where to find the notice within the material. Here is suggested text from the CMS for the first page:

“If you (and/or your dependents) have Medicare or will become eligible for Medicare in the next 12 months, a federal law gives you more choices about your prescription drug coverage. Please see page XX for more details.”

Email distribution is allowed but only for employees who have regular access to email as an integral part of their job duties. Employees also must have access to a printer, be notified that a hard copy of the notice is available at no cost upon request, and be informed that they are responsible for sharing the notice with any Medicare-eligible family members who are enrolled in the employer’s group plan.

CMS Disclosure Requirement

Separate from the participant notice requirement, employers also must disclose to the CMS whether their group health plan provides creditable or noncreditable coverage. To submit your plan’s disclosure, use the CMS online tool and follow the prompts. The process usually takes only 5 or 10 minutes to complete. It is due with 60 days after the start of the plan year; for instance, for calendar year plans that will be March 1, 2022. If the plan’s prescription drug coverage ends or its status as creditable or noncreditable changes, submit a new disclosure within 30 days of the change.

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Onboarding Starts Before a New Hire’s First Day

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new hire

Pre-Employment Communication

New hires are often overwhelmed on their first day – especially when the orientation program includes long lists of procedures, tasks, company policies, introductions to co-workers, compliance requirements, and all the technical aspects of employment. It’s difficult for new hires to absorb and retain much of the information conveyed during orientation, this is why follow up is critical.

So first-day orientation, while important, isn’t the end of onboarding. Onboarding is a larger process that begins before the start date and continues through most of the first year, done properly it will provide a seamless, efficient and effective new hire experience.

It All Begins Here

Remember when you started. When did you receive and sign your offer letter? How soon did you start? Did you have communication between your hire and start dates? If there was communication, what form was it in? What did it say? What materials were provided? Hopefully you received a reminder to bring valid identification as well as signed copies of employment documentation (offer letter, employee handbook acknowledgment, I9, and a W4).

Onboarding documents, such as a Welcome Packet, are sent as part of the series of communication before your employee’s start date. These documents provide an overview to help set expectations. They also give your new hire time to review information and arrive for their first day prepared and ready!

Standardized new hire onboarding communication decreases the work and relieves much of the effort creating this experience for each new hire. This will also help you build a consistently reinforced employer brand with each new employee.

While some items in the onboarding process can be conveyed via bullet points in an email (direct deposit setup, background check, dress code, etc.) others need to be more thoroughly and clearly communicated. The Welcome Packet you create does just that.

A Good Heads-up Will Lower Anxiety

We like the Golden Rule when it comes to a new employee orientation checklist: When starting a new job, would you want your new company to send you a generic welcome email before your first day, or more personalized and detailed information to get you ready for your new position.

Provide new employees with a sense of transparency with the materials your company provides in their Welcome Packet. Include information to give them a heads-up (maybe refrigerator lunchroom rules or the temperature in the office). When appropriate an email introduction to team members or a request for a short personal bio for a welcome announcement to the company.

Providing a snapshot of coworkers (just the basics) first name, face, and function. These basic three can prove to be helpful when your new hire first meets their coworkers. This information can also help lower anxiety.

Day 1

New hire expects an HR orientation on their first day. How long will orientation take 60 minutes, a full workday? What needs to be covered? What questions should be asked? These are the types of things new hires are thinking about. Introductions, new hire paperwork, lines of communication, different team members, understanding the new role and expectations of performance are all unanswered question new hires want and need to know.

Start by sending Welcome Packets a week before the new hire start date. This provides basic information and answers questions and concerns before that often stressful first day.

As we all know, first impressions matter! The first day is a major part of the onboarding process. This is where your company makes its first impression. This is why it’s essential to get things off to a proper start. Providing a detailed look at the agenda will keep you and your new hire on the same page and help ease the stresses of day one.

Six Months

Onboarding is about employee perception and experience, providing a platform for successful employment. It doesn’t stop after the first day. It’s not unusual for new hires to take as much as 6 months to a year to fully get up and running in all aspects of their new employment. The all important 90 day review should include a review with not just the employees manager but with the HR department. This provides the perfect opportunity to ask about their experience and opinion of the onboarding process.

This is why it’s important to have a plan that extends out 90 days to as long as 6 months.

Conclusion

Once the onboarding is complete, check for understanding, track your results, examine any gaps, incorporate feedback to improve your future Welcome Packets.

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HR Compliance: What It Is and Why It’s So Complicated

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HR Compliance

Running a business comes with no shortage of perks. You get the freedom to be your own boss, invest in an idea, steer its trajectory, and create wealth. It has its challenges, too. Competition may be fierce. Demand for what you offer may be low. Costs may not be sustainable. But even if everything else is going your way, there’s one challenge that’s ever-present. We’re talking, of course, about HR compliance.

The Definition of HR Compliance

HR compliance is the work of ensuring that your employment practices conform to federal, state, and local laws. This work requires learning which laws apply to your organization and understanding what they require you to do. That’s easier said than done.

HR compliance is truly an art. It requires knowledge, skill, and cooperation. You have to be able to decipher legalese, know where to go to ask and get the right answers and create policies and procedures that minimize business risk. You have to ensure that everyone from the executive team to newly minted managers know what they can and cannot do. You have to conduct investigations and enforce your rules consistently. And all this is just the bare minimum—necessary, but not enough to create a truly successful culture.

The work of compliance is never entirely done. Not only do new legal requirements appear frequently, but, as you’ll read below, compliance obligations are often unclear. While some compliance obligations are definitive, others are unresolved, and a good number require you to make a judgment call. Let’s look at each of these in turn.

Why HR Compliance Can’t Always Be Assured

Some employment laws take the form of “Do this” or “Don’t do that.” The requirements may be simple, like minimum wage, or complex, like FMLA, but either way there’s usually no real question about what you need to do or not do. Compliance with these laws is pretty straightforward. Don’t pay less than the minimum wage. Provide leave to eligible employees for the reasons that qualify, continue their health benefits (if applicable), and return them to their position when their leave ends. As long as you’re clear on the details, you’re not likely to lose sleep wondering if you’re compliant.

Sometimes, however, those details are unsettled. Lawmakers don’t always specify everything a law requires before it passes or takes effect. Even when laws seem clear, trying to put them into practice often raises a lot of questions. And the legislature isn’t the only source of law: regulatory agencies demand their say, and courts get involved, too. To complicate matters, these branches of government don’t always agree with each other, and what they say today may not be what they say tomorrow. Keeping up with the latest official guidance takes time and persistence. It can feel like a marathon, when what you want is a quick sprint to the answer. You have other demands on your time, after all. 

Finally, a lot of employment laws have standards you have to follow, but they don’t tell you how. Neither the IRS nor the DOL, for example, tells you whether your workers are employees or independent contractors—unless there’s an audit or complaint. Instead, these agencies publish tests with general criteria that you use to make case-by-case determinations.

The Americans with Disabilities Act (ADA) works this way, too. The ADA requires employers to provide reasonable accommodations to employees with disabilities, with a few exceptions. One of the exceptions is that the accommodation doesn’t create an undue hardship on the employer’s business. The basic definition of an undue hardship is an action that creates a significant difficulty or expense. Although the law provides factors to consider in making this determination, the onus is on you to decide whether an expense or difficulty from an accommodation is significant. And, ultimately, your conclusion could be challenged in court.

Why HR Compliance Looks Like This

If HR compliance seems overly-complicated, that’s because it is. Our current legal landscape is the result of three competing philosophies about how the workplace should be governed, who should govern it, and whose rights in the workplace should be prioritized in the law.

Owner Control

According to the first view, business owners should have control over their workplaces for one simple reason. They own the business. It’s their property, and as owners they should have the legal right to govern it. Employees have no right to control aspects of the workplace because the workplace isn’t theirs. They don’t own it. It’s not their property. If they don’t like the terms and conditions of their employment, they can and should go elsewhere.

While an owner might employ managers or an executive team to make decisions about who to hire and fire, what to pay, how to assign work, and other such matters, the owner remains in charge. Advocates of this view include the economist, Milton Friedman. In 1970, he famously argued that corporate executives should bow to the desires of the owners. The will of the owners reigns supreme. 

Worker Control

According to the second view, workers should have a say in the decisions that get made simply because those decisions affect them and their livelihoods. In this line of thinking, the governance of the workplace should adhere to the principles of democracy. However, proponents for this view differ on how democracy in the workplace should be practiced.

In the 1930s, Senator Robert F. Wagner introduced the National Labor Relations Act. He wanted to guarantee the “freedom of action of the worker” and ensure that workers were “free in the economic as well as the political field.” Today, talk of democratizing the workplace usually refers to bolstering unions. But there are other proposals to note. Some champions of workplace democracy, like Senator Elizabeth Warren, have pushed for employee representation on corporate boards. Others favor cooperative models in which the division between employers and employees doesn’t exist.   

Full-fledged workplace democracy is still a fringe view, though. The very definition of an employee remains a worker who does not have the right to control what the work is, how it’s done, or how it’s compensated. Employees may be given authority to make decisions. They may have influence over their superiors. But they are not legally in charge. 

Societal Control

Advocates of the third view argue that the government has an interest in exercising some measure of control over the work and the workplace. In the employer-employee relationship, employers typically have significantly more power than employees—especially an employee acting as an individual. Frances Perkins, who served as Secretary of Labor and was a key architect of the New Deal, believed that government “should aim to give all the people under its jurisdiction the best possible life.” She saw a role for legislatures in countering long hours, low wages, and other conditions unfavorable to employees. 

How These Philosophies Have Played Out

In the United States, HR compliance is the result of these three competing and arguably incompatible philosophies. Government action with respect to employment has tried to empower workers and afford them certain rights, protections, and freedoms in the workplace, all while preserving the employer’s control over their business.

We can see this balancing act in the differences among state laws. Some states prioritize the right of owners to control their workforces and are loath to restrict that right through legislation. Other states act out of what they see as a duty to secure the rights of workers. Imposing obligations on employers doesn’t bother them.

We also see this balancing act in the way that employment laws tend to set parameters rather than dictate exactly what employers must do. You can pay employees whatever you want, so long as you pay at least the minimum, offer an overtime premium when applicable, and meet equal pay requirements. You can theoretically terminate employment for any reason or no reason at all (though we don’t recommend it); but you can’t fire someone for an illegal reason. Even laws that require a new practice, such as paid leave, allow flexibility provided you meet minimum conditions.

Takeaways

First, when you’re assessing your compliance obligations, understand that not all compliance obligations are clearly delineated or settled law. Unsettling as that may be, it’s how our system has been set up. In those cases, you’ll have to weigh your options and the risks involved, and then make a decision. Sometimes you may need legal advice in addition to HR guidance. Remember, however, that despite all the many employment laws on the books and in the imaginations of legislators, the system is designed to keep employers in charge. You can’t eliminate all risk, but by understanding the nuances and open questions, you can significantly minimize it.

Second, document your actions and decisions. It only takes an employee filing a complaint for enforcement agencies to get involved, but you are better protected if you can quickly and clearly explain to them the reason for your actions.

Third, evaluate whether your policies, procedures, and practices are satisfactory to employees. No employment law gets written in a vacuum, and no law is truly inevitable. Lawmakers passed the Fair Labor Standards Act because workers and the general public felt that labor standards were unfair. Today we wouldn’t have people pushing for predictive scheduling laws if they felt that work schedules were already sufficiently predictable. Harassment prevention training wouldn’t be mandatory (where it is) if sexual harassment weren’t widespread.

Fourth, lead by example. Make good employee relations a key part of your brand and competitive advantage. Employees have higher expectations today than they used to. Meet those expectations and motivate other employers to do the same, and you may find that the compliance landscape of the future is less winding and boggy than it could have been.

Finally, spend some time each day learning about your compliance obligations. Use resources that break down federal and state employment laws in a way that laypeople can understand. Keep up to speed on the latest compliance obligations and contingencies you should consider. HR compliance is an art. The first step to mastering it is learning what it entails and how it works.

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Vaccination, Masking Policies, and Returning to Work— FAQ

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Are you reopening your office and wondering what your vaccination and masking polices can be? Our FAQ provides you with answers you need.

Can we bring all employees back to the office, but make the unvaccinated keep their masks on?

In most states, yes.* Currently the CDC suggests that fully vaccinated people do not need to wear masks in most places (some workplaces will be an exception, such as healthcare settings), but that non-fully vaccinated people should continue to wear masks and maintain social distance. OSHA has issued guidance that is in agreement with the CDC, as well as an Emergency Temporary Standard for healthcare. Additionally, some states or localities may have stricter mask requirements that should be followed. However, absent such requirements, having different rules for vaccinated vs. unvaccinated is acceptable since it is not based on a protected class.*


Treating these groups differently is generally not illegal employment discrimination* and employers should not think of it as treating employees more or less favorably, but simply as following current public health guidelines. This should also be emphasized when talking to employees about the different rules for those who are vaccinated or unvaccinated.


Keep in mind that some employees will be unvaccinated due to disability, pregnancy, or religious beliefs. Employers should be careful to ensure that these employees are not harassed because of their vaccination status (which will be obvious if they are required to wear a mask when fully vaccinated employees are not). While preventing harassment of any employee who is unvaccinated is a best practice to maintain morale and productivity in the workplace, employees who are unvaccinated for these particular reasons have protections under Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA).


*Numerous bills have been introduced at the state level to make vaccination status a protected characteristic and it appears that some Governors may create protections via Executive Order (EO). So far only Montana’s law has passed, but it appears to prevent employers not only from excluding unvaccinated workers but also from asking them to wear masks if vaccinated employees don’t have to. The current EOs (as of June 28) do not appear to impact private employers. Employers should check for state law before making policies that treat vaccinated and unvaccinated workers differently.

Can we bring back only vaccinated employees?

It depends. Unless state or local law says otherwise*, you could exclude employees from the workplace who are not vaccinated for reasons other than disability, pregnancy, or religious belief, since choosing to forgo vaccination for other reasons is not generally a protected class or characteristic.


Employers who want to exclude unvaccinated employees will need to make reasonable accommodations for employees who are unvaccinated due to disability, pregnancy, or religious belief. If there is no reasonable accommodation that would allow them to be in the workplace without posing a “direct threat,” they too could be excluded. Whether a direct threat exists, and if it can be mitigated, is extremely fact specific. The EEOC provides guidance here, in Q&A K.5.  Even when you could exclude an unvaccinated employee, we generally wouldn’t recommend it.


Litigation around mandatory vaccination (which is, in effect, what an exclusion rule creates) is ramping up, and even pre-litigation expenses can add up fast. In many cases, an alternative approach of requiring unvaccinated employees to continue wearing masks and maintaining social distance will achieve similar results in term of workplace safety. That said, any approach to bringing employees back will require a workplace-specific risk assessment.


*Numerous bills have been introduced at the state level to make vaccination status a protected characteristic and it appears that some Governors may create protections via Executive Order (EO). So far only Montana’s law has passed, but it appears to prevent employers not only from excluding unvaccinated workers but also from asking them to wear masks if vaccinated employees don’t have to. The current EOs (as of June 28) do not appear to impact private employers. Employers should check for state law before making policies that exclude unvaccinated workers from the workplace.

Is it illegal discrimination to treat vaccinated and unvaccinated employees differently?

It depends. Different treatment that is reasonably related to workplace safety – such as having non-vaccinated employees continue to wear masks – is generally okay.* Employers should make a concerted effort to only treat vaccinated and unvaccinated employees differently to the extent necessary to ensure the safety of all those in the workplace. Additionally, employers must make reasonable accommodations for employees who are unvaccinated due to disability, pregnancy, or religious belief; treating these employees differently without trying to work with them would be illegal discrimination.


Treatment that does not increase safety directly but rewards those who are vaccinated also needs to allow for accommodations for employees who can’t get vaccinated due to disability, pregnancy, or religion. For example, if you offer $100 for getting vaccinated, or throw a pizza party for vaccinated employees, an employee with a disability that prevented vaccination would need to be able to earn the $100 or attend the pizza party by doing something else that similarly advances safety in the workplace, like wearing a mask, undergoing regular COVID testing, or taking a course on preventing the spread of viruses.


While employees who are unvaccinated for reasons other than disability, pregnancy, or religion are not entitled to these kinds of accommodations, it may make sense to provide them anyway, both to encourage the alternative safety-enhancing behaviors, and to reduce the likelihood that they will complain about how they are being treated.


There is also the possibility that treating unvaccinated employees differently will have a “disparate impact” on those of a certain race or ethnicity. Disparate impact claims generally arise when an employer is trying to do something in the best interest of the company, but the methods they use ultimately harm a certain protected class. In the case of excluding unvaccinated employees, or offering cash incentives to those who are vaccinated, there could be a disparate impact on employees of color, whose vaccination rates are lagging behind those of white employees.


Employers should also ensure that unvaccinated employees are not harassed by co-workers, managers, or customers, since disability, pregnancy, and religious beliefs are protected characteristics. Although employers do not have a legal obligation to prevent harassment of employees who are unvaccinated for other reasons, it is in the best interest of the employer to prevent this, as any kind of workplace harassment is going to lead to loss of productivity, morale issues, and quite possibly bad PR.


*Numerous bills have been introduced at the state level to make vaccination status a protected characteristic and it appears that some Governors may create protections via Executive Order (EO). So far only Montana’s law has passed, but it appears to prevent employers not only from excluding unvaccinated workers but also from asking them to wear masks if vaccinated employees don’t have to. The current EOs (as of June 28) do not appear to impact private employers. Employers should check for state law before making policies that exclude unvaccinated workers from the workplace.

What do we do about employees who complain about wearing masks?

We recommend providing them with the CDC’s current guidance as well as any applicable state or local requirements. You can explain that the company is just doing what public health authorities recommend to keep people safe.

Should we have unvaccinated employees sign a waiver?

A waiver may or may not be useful or legally enforceable. We recommend you speak with an attorney if this is something you are interested in. A waiver will not eliminate your general duty under OSHA to provide a workplace that is free from hazards. Also, most states’ workers’ compensation laws do not allow employers to contractually limit their liability for on-the-job injuries or illnesses.

There are no mask mandates that affect our business. Should we require employees to wear masks anyway?

Providing advice on disease mitigation is outside of our scope of services, so we defer to guidance from the CDC and OSHA. Currently, the CDC recommends that those who are not fully vaccinated continue to wear masks in public (including the workplace) and maintain social distance, while those who are fully vaccinated may go unmasked without social distancing. OSHA has issued guidance that is in line with the CDC’s recommendations (though different rules apply in healthcare settings).

Should we make everyone keep wearing masks so the unvaccinated don’t feel singled out?

You could; masks can essentially be treated like uniforms. That said, requiring masks for those who are fully vaccinated (when not required by state or local law) is likely to cause serious morale issues and increase turnover.

Since the vaccinated people won’t get sick, can we let the unvaccinated people take their masks off too?

Providing advice on disease mitigation is outside of our scope of services, so we defer to guidance from the CDC and OSHA. Currently, the CDC recommends that those who are not fully vaccinated continue to wear masks in public (including the workplace) and maintain social distance, while those who are fully vaccinated go unmasked without social distancing. OSHA has issued guidance that is in line with the CDC’s recommendations (though different rules apply in healthcare settings).


You may also want to consider that some vaccinated people will not be as protected as others. Those who are immunocompromised will have often get a much lower level of protection from the vaccine than the general population. Those people will therefore be at higher risk around unvaccinated people who are not wearing masks.

Can we ask for proof of vaccination? Isn’t this a HIPAA violation or an illegal inquiry under the ADA or somehow confidential information?

Employers can ask for proof of vaccination unless there is a state or local law or order to the contrary.*


When an employer is requesting or reviewing medical information in its capacity as an employer, as it would be when asking about an employee’s vaccination status, it is considered to be an employment record. In such cases, HIPAA would not apply to the employer. The ADA will govern the collection and storage of this information.


The Equal Employment Opportunity Commission (the EEOC), which enforces the ADA, has said that asking about vaccination is not a disability-related inquiry, though it could turn into one if you ask follow up questions about why the employee is not vaccinated. Asking a yes or no question, or requesting to see the employee’s vaccination card, does not violate any federal laws or require proof that the inquiry is job-related.


Finally, just because employees think that something is or should be private or confidential doesn’t mean that they can’t be required to share it with their employer. Social Security Numbers, birth dates, and home addresses are all pieces of information an employee may not want to advertise, but sharing is necessary and required. Vaccination status is similar. However, all of this information, once gathered, should not be shared by the employer with third parties, except on a need-to-know basis.


*It appears that some Governors may attempt to prevent certain entities from requiring “immunity passports” (e.g., proof of vaccination) through Executive Order, though as of June 28 none of the EOs already issued appear to apply to private businesses and their employees. Also note that if there is a law in place that prevents treating vaccinated and unvaccinated employees differently (like in Montana), you may be able to ask, but not take any action based on the response.

Should we keep a record of who is vaccinated or make copies of vaccination cards? If we do, how long do we have to keep it for?

If you’re asking about vaccination status, you’ll want to keep some kind of record (so you don’t have to ask multiple times), but how you do so is up to you, unless state or local law has imposed recordkeeping requirements. You may want to keep something simple like an excel spreadsheet with the employee’s name and a simple “yes” or “no” in the vaccination column. If you’d prefer to take a copy of their vaccination card, that should be kept with other employee medical information, separate from their personnel file.


If state or local law requires recordkeeping, then follow those requirements, including how long the records should be kept. If no law is in play, we recommend keeping the information for as long as you keep other information in employee medical files.

If we keep a record of who is vaccinated, can we share it with managers so they can enforce any policies based on that information, such as masking and social distancing?

Yes. We recommend not sharing this information any more widely than necessary. While anonymized information is okay to share (e.g., “80% of our employees are vaccinated!”), each employee’s vaccination status should be treated as confidential, even if the fact that they are wearing a mask to work seems to reveal their status publicly.


Obviously, managers will need this information if they are expected to enforce vaccination-dependent policies, and employers should train them on how they should be enforcing the policies and how and when to escalate issues to HR or a higher level of management.

If an employee has had COVID, is that as good as being vaccinated?

No. The CDC differentiates between those who are fully vaccinated and everyone else. Having had COVID does not appear to provide the same level or length of immunity as the vaccine, so is not a suitable substitute when determining which safety measures should be enforced.

Can we forbid employees from wearing masks, assuming no laws say otherwise?

Theoretically, yes. However, employers will need to provide reasonable accommodation to those who are not vaccinated due to disability, pregnancy, or religion, as well as to those who are vaccinated but who will not get the same level of immunity from the shot as the general population. Additionally, since a rule like this is in direct opposition to current federal guidance, it is likely to result in complaints to OSHA, bad publicity, and lawsuits. Even if masks are not required by any law, we recommend allowing employees to wear them for any reason or no reason at all.

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