As we enter the winter season with COVID-19 infections at record highs, businesses are preparing for an unusual holiday workplace where typical travels and gatherings are hindered. With the Thanksgiving holiday just weeks away, Jackson Walker Labor & Employment partner Sarah Mitchell Montgomery and Litigation partner Brad Nitschke discuss some of the issues they are hearing from businesses, including:

• What should businesses do to reduce the risk of holiday parties, business development events, or other traditional gatherings this year?
• What about office rules regarding gatherings, both inside and outside of the workplace?
• How are businesses handling the coronavirus fatigue that many of us are experiencing?
• Will the recent news of a possible Pfizer vaccine change how we approach the holidays?

For advice about getting back to work safely, read Sarah’s insights in the D CEO article “Can Employers Force Their Employees to Receive the COVID-19 Vaccine?“

Greg Lambert: Hi, everyone. I’m Greg Lambert, it’s November 11, and this is Jackson Walker Fast Takes. As strange as it may seem for many of us, we are now entering the traditional workplace holiday season. And as with everything in 2020, we’re going to need to have a different approach to how we typically operate. I asked Jackson Walker Labor & Employment partner Sarah Mitchell Montgomery and Litigation partner Brad Nitschke to come in and discuss some of the issues that employers need to consider this holiday season.
Sarah and Brad, welcome to the show.

Brad Nitschke: Thanks for having me.

Sarah Montgomery: It’s good to be here.

Greg Lambert: Brad, let’s start with you. Traditionally, businesses see the beginning of November as the start of a two-month holiday season. Obviously, this year is bringing some new challenges to this annual process. What concerns are you hearing from businesses as we head into a holiday season with COVID still as a part of the picture?

Brad Nitschke: Well, so I think holiday travel and family gatherings are really top-of-mind for businesses. As we know, infection numbers are back up in Texas’ major urban areas. They’re also spreading, unfortunately, to smaller cities and rural areas that have not borne the full brunt of the pandemic earlier in the year – at least from an infection numbers standpoint. So, businesses are asking what do we do about employees who we know are going to spend holidays with family and friends, some of whom may be coming from higher infection areas that don’t have some of the same control measures in place that the urban areas have kept.
Also, the schedule is an issue this year. So, Thanksgiving is November 26th, Hanukkah starts exactly two weeks later on December 10th and runs until December 18th, and then Christmas is exactly a week later on December 25th. So, taking into account what is still the CDC’s guidance that anybody who’s potentially been exposed, but hasn’t tested positive and is not symptomatic, self-quarantine for 14 days. The tight holiday calendar this year just doesn’t allow for a lot of recovery time if a critical mass of employees are exposed at holiday gatherings.
You know, something else that we’re hearing from businesses is just concern about an overall relaxing of caution about exposure in daily life, whether that’s among employees or customers or vendors. COVID fatigue is a real thing, and we’re hearing concern from businesses about people letting their guard down. So, we’re hearing more stories of employee exposure at business development events, masks coming off on the golf course or business lunches, school-age kids with COVID exposure at school coming home. And so that’s a factor that that seems to be top-of-mind.
And then finally, the workplace holiday gatherings. So, questions about do we have the holiday party or dinner this year? Those are all things that we’re hearing from businesses sitting here two-and-a-half weeks ahead of Thanksgiving.

Greg Lambert: And Sarah, from an employment lawyer’s vantage point, what practical measures should employers be thinking about to try to control some of those risks?

Sarah Montgomery: Right, so with the holidays approaching, employers obviously, as Brad said, are considering whether to have those traditional holiday parties and gatherings. With the strain that COVID-19 has placed on workplace camaraderie, it’s really tempting to have a gathering to allow employees to reconnect and to celebrate the end of 2020 finally. However, with the ongoing spread of COVID-19 and the recent uptick in cases, this is probably not the year to have the large workplace gatherings. Instead, employers should consider other ways to reward employees and to show their appreciation that could be through a meaningful gift to employees, an end-of-year bonus, virtual parties, or maybe a virtual food and wine tasting. Those are just a few ideas, but just ways to reward employees without bringing them all together in a large gathering.
And also due to the uptick in cases, employers who have been returning employees to the office may need to again assess whether they can allow more employees to work from home right now. Until COVID-19 spread is under control, which may only occur once vaccine use is widespread, allowing employees to work remotely is going to be one of the most effective ways to prevent the spread of COVID-19 among employees. For those employees who really need to be in the office, employers should ensure that policies that are in place for preventing the spread of COVID-19 in the workplace are up to date and they’re being enforced, because, as Brad mentioned with COVID fatigue, there’s a lot less concern about enforcing those policies. So, employers want to revisit that and ensure their policies are being firmly enforced. The policies that may need to be updated include health and safety policies and even off duty conduct policies, among others. And we also encourage employers to conduct a CISA 4.0 style risk assessment by job position. Doing so will help employers determine who can work from home successfully, where there may be additional opportunities for social distancing in the workplace, and what other measures could be taken to decrease the risk of workplace spread, such as reducing the number of outside visitors in the office and discontinuing in-person meetings. But through all this, just a word of caution: Employers need to be mindful of their obligations under the Americans with Disabilities Act to provide reasonable accommodations to those employees who have disabilities, which can include disabilities that may put them at higher risk of COVID-19 complications. Remote work may be a reasonable accommodation in many situations, but if that is not feasible, employers must engage in the interactive process to try to accommodate a disabled employee before excluding that employee from the workplace.

Greg Lambert: Now, we’ve all heard the news this week about Pfizer’s claim on a breakthrough in a vaccine. So Brad, how should employers look at this Pfizer vaccine news?

Brad Nitschke: I think it’s encouraging news no matter how you look at it, but a word of caution about factoring it into end-of-year holiday workplace safety planning. So, Dr. Scott Gottlieb, who’s the former head of the FDA, a physician, and serves on Pfizer’s board, says that we’re looking at early 2021 best case for distribution just to high-priority elderly folks in the community per state’s individual distribution plans. And so, it doesn’t sound like anybody, including Pfizer, is planning for approval and widespread distribution in time for a vaccine to be a relevant factor in end-of-year workplace safety planning. So it’s, I think it’s a sign of hope for the future, but unfortunately it doesn’t change whether you can throw the annual Christmas lunch in the cafeteria or not.

Greg Lambert: And Sarah, anything that you’ve been reviewing on this?

Sarah Montgomery: Absolutely. So you know, as availability and distribution of COVID vaccines become more widespread, which again we don’t anticipate occurring in the next few months – it’s going to be a number of months, employers will need to be considering whether they want to institute a mandatory vaccine policy if the EEOC gives them a green light to do so. So it’s something that employers can go ahead and start considering—whether that is something they think they will be interested in doing, assuming they get the okay to do so.

Greg Lambert: Well, Sarah Montgomery and Brad Nitschke, thank you both for taking the time to talk with me, and let me be the first to wish you both happy holidays.

Sarah Montgomery: Thank you. Same to you.

Brad Nitschke: Thanks, Greg. Happy holidays.

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The music is by Eve Searls.

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Please note: This article and any resources presented on the JW Coronavirus Insights & Resources site are for informational purposes only, do not constitute legal or medical advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Jackson Walker. The facts and results of each case will vary, and no particular result can be guaranteed.