Issue link: https://nebusinessmedia.uberflip.com/i/1399624
31 HARTFORDBUSINESS.COM | AUGUST 9, 2021 Opinion & Commentary EDITOR'S TAKE As Labor Day approaches, employers' return-to-work policies will be put to the test L abor Day is less than a month away and this year the holiday honoring workers will take on extra meaning. That's because many employers, particularly Hartford's largest companies, have targeted Labor Day as a key date to return more workers to the office. But with COVID-19 infection rates seeing yet another spike in Connecticut — aided by the highly- contagious delta variant impacting largely unvaccinated residents — some employers may be having second thoughts about their return- to-work policies. Travelers Cos., for example, announced that it was pushing back its September return-to-the office plan for at least a month. The reality is the pandemic is not over, but I do think Connecticut, with its high vaccination rate, will be able to keep the delta variant under control, precluding the need for further lockdowns or restrictions on businesses. A mask mandate is sensible in regions where the virus is spreading at a quicker rate. Regardless, the decision for how to manage employees in the weeks and months ahead will not be an easy one. Flexibility will be the key to not only keeping workers safe but also retaining and recruiting top talent. Two issues in particular will have major implications for how employers are able to keep their best people: vaccine mandates and remote-work policies. I've got strong feelings on both. Vaccine mandates Most legal experts at this point agree that employers can largely mandate their workers to get vaccinated, allowing certain exemptions for religious or health matters. In Connecticut, hospitals have taken the lead on this issue, announcing in June they were collectively backing a policy that will require their workers to get vaccinated against COVID-19. Many local colleges are also requiring vaccines before students and faculty return to campus this fall. I'm of the mindset that employers should strongly recommend vaccines but stop short of mandating them. Work life, however, should be made more challenging for the unvaccinated, maybe requiring them to wear a mask at all times, or not allowing them into the office at all. As long as the virus continues to circulate, and we haven't achieved herd immunity, the threat of the disease spreading and mutating remains high. Employers should play a leading role in encouraging vaccination and educating about vaccine safety, even providing incentives to those who are hesitant or obstinate. Return to work In 2016, health insurer Aetna, which had long offered telecommuting to its workers at the time, announced it was curbing its work-from-home policies and requiring more employees to return to its Hartford offices. The reason? Aetna concluded too many employees working from afar was curbing innovation and collaboration — the lifeblood of any business. The COVID-19 pandemic taught all of us that remote work is a viable way to operate a company, particularly during a health crisis. But I predict businesses that operate with a fully- remote workforce long term will lose their competitive edge. Large employers have talked about the added benefits of being able to recruit from a larger talent pool, now that more of their positions are fully remote. That is a positive outcome of the pandemic, but retaining those workers, who will have less personal ties to the company, will be a greater challenge down the road. Friendships made in the office or even at a happy hour help boost employee morale and make the employee-employer relationship more sticky. Not to mention, you can't replicate the unplanned interactions in an office environment over Zoom. Sometimes that's where the best ideas germinate. According to a poll conducted by Hartford Business Journal and PwC in May, only 18% of HBJ readers wanted to work from home five days a week — signalling both a willingness and desire for the majority of people to spend some time in the office. Again, flexibility is the name of the game. The hybrid work model is one that will have staying power and give companies the best chance to succeed long term, both in retaining and recruiting talent and maintaining an environment of innovation. Greg Bordonaro EXPERTS CORNER Best practices for employers to address recreational cannabis By Megan Y. Carannante and Zachary T. Zeid The law legalizing recreational use of cannabis in Connecticut imposes new restrictions on employers while offering protections for employees who indulge. For employers seeking to prohibit off-duty cannabis use, a strong written workplace policy is a necessity. Employers may continue to prohibit cannabis use at work First and foremost, concerned employers need not panic — the new cannabis law is clear that employers may continue to maintain drug-free workplaces and may still prohibit employees from using or being under the influence of cannabis at work or during working time. New employee protections for off-duty and non-work use The law also imposes new employment protections for certain individuals who use recreational cannabis off the clock, including current and prospective employees. However, due to heightened safety concerns surrounding cannabis use, certain organizations are exempt from these new protections, including employers in the following industries: mining, utilities, construction, manufacturing, transportation or delivery, educational services, health care or social services, justice, public order or safety activities, national security and international affairs. Certain safety-sensitive positions are also exempt. Beginning July 1, 2022, non- exempt employers are prohibited from taking adverse action against a current employee solely on the basis of a positive test or off-duty cannabis use unless such action is taken pursuant to a written drug-free workplace policy. The policy must be made available to each employee prior to the employer taking adverse action, which includes, but is not limited to, written or verbal discipline, demotion and termination of employment. In the pre-employment context, non-exempt employers may no longer refuse to hire a prospective candidate based solely on a positive cannabis test unless it would result in the employer violating a federal contract or losing federal funding. Drafting a workplace policy It is critical for employers to have strong workplace policies addressing cannabis use. Organizations with existing policies addressing drug use should first determine their exemption status and stance on employee cannabis use, then review the existing policies and hiring procedures to determine whether any changes should be made. If there is no policy in place, the organization should act quickly to create one. A comprehensive policy should do the following: • Explain why the employer is implementing a drug-free workplace policy and its commitment to establishing a healthy, safe and productive workplace. • Describe the rules and expectations regarding drug and alcohol use and testing, including at work, on-call, and off-duty. Be specific in describing what is prohibited, including where and when, and ensure the policy also addresses recreational and medical cannabis, illicit drugs, prescription and over-the-counter medications and alcohol. • Provide guidance on signs of impairment caused by drug or alcohol use for managers and employees. • Outline the types of drug and alcohol testing the employer may require and the corresponding testing procedures. • Provide information about assistance for employees struggling with substance abuse. • Identify the appropriate person for employees to contact with questions about the policy. • Describe the consequences for policy violations, including potential discipline that may be imposed by employers who prohibit off-duty cannabis use. Communicating the policy To minimize prospective liability, employers should be proactive now rather than waiting until a cannabis- related workplace issue arises. Regardless of exempt or non- exempt status, employers should act quickly to inform employees about the new law and how it impacts the workplace before the new employee protections take effect. Employers should communicate the organization's position on cannabis use and reference any applicable policies. Employers should also provide training to managers about these changes, including new or revised hiring and testing procedures, recognizing signs of impairment at work and employee discipline. Megan Y. Carannante and Zachary T. Zeid are labor and employment attorneys at the law firm Pullman & Comley LLC.