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Moving forward to the new workplace reality after the pandemic

Wednesday 15 December 2021

Leticia Ribeiro C de Figueiredo
Trench, Rossi and Watanabe, Sao Paulo
leticia.ribeiro@trenchrossi.com

Although the Covid-19 pandemic appears to be slowly declining in some jurisdictions, its long-term effects will continue to impact and shape the workplace across the globe for the foreseeable future. While the way in which different parts of the world experienced this medical crisis varies greatly, including with respect to the availability of healthcare support, testing and vaccination, it is interesting how the employment-related challenges have been quite similar in different corners of the globe, despite all other contrasts.

One of the prime common denominators for employers post-pandemic, has been the widespread adoption of remote work. When the World Health Organization officially announced the pandemic on 11 March 2020, employees' growing fear of exposure to the Coronavirus created an exodus from corporate offices. It is now clear that the return to work on-site is much more challenging. There are substantial employee experience considerations to be weighed, such as asking employees to, once again, endure long commutes and forcing them to lose the perks and comforts of working from their own home. Additionally, there are new complicated issues arising from the fact that employers must now also act as regulators of the right to work from the company’s premises.

In most jurisdictions across the globe, as the owner of the enterprise, employers have a series of rights and obligations. Among those obligations is the central responsibility to provide a healthy and safe workplace, not only for employees, but also for customers, suppliers and the public visiting the premises. This includes preventing risks to health, alerting to potential hazards in the workplace, avoiding or controlling exposure to substances that may damage health and providing health supervision and protective equipment as needed. Failure to do so often results in individual and/or collective disputes relating to the damage caused by not properly fulfilling the applicable occupational health duties.

While vaccines have been a part of our lives since 1796, when the smallpox vaccine was developed, in 2020 this matter became dramatically more controversial. Such controversies invaded the workplace, triggering heated discussions about the possibility of employers creating additional regulations to allow employees to safely return to work on-site. As if the return to work itself was not challenging enough, discussions such as mandatory periodic tests for Covid-19, vaccination and even segregation of the unvaccinated employees came into play.

Even though local rules vary for each country, when we look at the global landscape, we are seeing more and more federal, state and local governments requiring vaccinations as a condition for their own staff returning to work. The use of vaccine passports is also increasing, allowing those who are adequately protected against Covid-19 to be admitted to certain places and non-essential activities.

Many private-sector employers have followed this trend. Some individuals claim that an employer mandated vaccination would be an abusive and discriminatory practice. It is important, however, not to lose sight of the extraordinary circumstances employers and employees continue to face due to the Covid-19 pandemic, as well as the reason why employers even need to consider asking vaccination-related questions of their employees.

If unvaccinated employees pose a direct threat to the workplace, a socially responsible employer has no other option but to comply with its duties, under the risk of subsequently being held liable for the damages caused by allowing such a threat. In theory, the solution would be more straightforward if employers across the globe could simply demand vaccination with no exceptions. However, practice has already shown that this is not feasible, as there are workers who refuse to get vaccinated, including for medical reasons or religious beliefs.

As in many other areas of life, proper communication is key. Thus, a first suggested step is to promote appropriate discussions about the vaccination, including the creation of corporate education campaigns, provision of incentives to employees who get vaccinated and granting paid time off for employees to get the vaccine and recover from any potential side effects have also proven to be very effective in this process. Experience has shown that employers who follow this route often obtain positive results, as employees better understand how vaccination creates a safer workplace for everyone.

While philosophical objections to vaccines do not generally support valid exemptions, the safest approach from the employment perspective is to consider reasonable accommodations. In practice, such accommodations can consist of requiring unvaccinated employees to submit to weekly testing (among other safety precautions, including wearing masks and maintaining social distance), working remotely or even taking a leave of absence. While these accommodations may trigger additional costs and cause hardship for the business, they are still a valid way to try to accommodate employees' needs, especially until the pandemic is under control and legal challenges play out.

In more extreme cases, some employers have terminated the contracts of employees who refused to get vaccinated without presenting a valid reason. Although this approach is not risk-free in many jurisdictions, employer-favourable court precedents are generally growing, upholding vaccination requirements, especially when the employer properly evidences the business necessity. One aspect to be stressed, however, is that if the employer is able to achieve a reasonable level of workplace safety by asking employees to use masks, social distance or work remotely, this is still preferable to termination. As more local legislators enact additional guidance, employers will have additional security to determine the best course of action going forward.

The reality is that until the pandemic is over, both employers and employees must find ways to balance workplace safety with personal concerns. While today we already have scientific tools available (including vaccines and tests) that should allow us to strike the right balance, this is still a work in progress. Although there is no one-size-fits-all approach, there are certain common aspects that should be considered by multi-national employers at this time as we move forward together to the new workplace reality after the Covid-19 pandemic.