After months of working from home, Tyler Carr leapt at the chance to come back to the office when Wex Inc. tentatively started allowing some employees to return in the fall. 

When COVID-19 cases started ramping up again this winter, the company backpedaled on its reopening plans, but Carr still comes into the Portland office one or two days per week.

It’s a nice change of scenery and allows him to help keep work from bleeding into his home life, but the previously bustling office is a far cry from the environment he first left in March 2020.

Now, a year later, Carr remains one of just a handful of people back in the Hancock Street building. It’s still unclear when, or if, Wex employees will make a full return. 

That question is at the forefront of many Maine employers’ minds as accessibility to the coronavirus vaccine increases, with all Mainers over the age of 16 scheduled to be eligible by Wednesday. 

With the hope that the workforce will be fully or mostly vaccinated in the coming months, employers are starting to draft return-to-office plans, but for most, it will have been more than a year since employees were at their desks or gathering by the water cooler.

In a coronavirus-ravaged world, there are a slew of legal and ethical considerations that make moving forward significantly more complicated than marking a target return date on the calendar: Can a company require or incentivize vaccinations for employees? How many workers can an employer bring back? When is it safest to do so? How will they handle safety issues such as proper ventilation and adequate spacing between employees? And who gets to come back first? What about people who want to stay remote?

“Any time you make a decision about some employees and not others, it raises issues of discrimination,” said Daniel Rose, a labor and employment attorney for the Portland law firm Drummond Woodsum. 

For example, if an employer chooses to bring back the most experienced people, and it turns out they are all over 50 or are all women, there could be a problem.

“The rule is neutral, but the impact is not,” Rose said.

‘TREADING-WATER MODE’

It’s a difficult situation to navigate, and with constantly changing metrics, many employers and legal experts alike are in a holding pattern as they wait for more guidance from federal and state officials.

“We’re kind of in a treading-water mode where people are asking questions but haven’t made any plans,” said Dr. Dora Anne Mills, chief health improvement officer at MaineHealth.

It’s unlikely any solid plans will be made before more guidance comes from state and federal officials, she said, “but the guidance just isn’t there yet.”

Plus, while the coronavirus vaccine is effective, there’s “still a lot of disease in the state,” Mills said. “Even if you’re vaccinated, with this much disease around you can still get infected.”

That said, she believes the vaccine is still the best hope for a return to some semblance of normal.

If that’s the case, should employers require their employees to get vaccinated?

Making a decision is tricky and not without some legal risk.

Atlanta law firm Fisher Phillips estimates that, since January 2020, there have been 2,021 pandemic-related lawsuits filed against employers. The highest number of cases (549) have involved conflicts over remote work or taking leave, but employment discrimination claims are also high (480) and could rise as more companies start considering a vaccination requirement.

It’s already happening.

Early last month, a New Mexico detention center officer filed what is believed to be the first lawsuit challenging an employer’s right to require the vaccine. The plaintiff, Isaac Lagaretta, focused his claim on the U.S. Food and Drug Administration’s approval of the vaccine under a streamlined process used during public health emergencies, rather than through the traditional approval process, according to Fisher Phillips.

Tawny Alvarez, a partner with Verrill Dana, works from her home office in Scarborough on Thursday. After the pandemic began, Alvarez reconfigured her living room to make a workspace for her and an area for her daughter to attend remote learning. Gregory Rec/Staff Photographer

“We don’t believe it’s in the best interest of employers,” Tawny Alvarez, a partner in Portland law firm Verrill’s employment and labor practice group, said of mandating vaccinations. “Once the state of emergency has been lifted, it’s a really hard argument to say one of the job duties requires you to be immunized.”

The guidance also hasn’t been explicit, meaning the recommendations from other channels may be inconsistent.

“Under the new administration, it’s our hope and goal that we’ll get more specific guidance or mandates from (the Occupational Health and Safety Administration),” she said.

Alvarez said more guidance should be coming within the next few months.

REQUIRE OR ENCOURAGE?

To avoid legal pitfalls, Alvarez recommends encouraging the vaccine instead of making it mandatory.

That said, if a company does decide to require it, she said they have to be careful to offer exemptions.

The Equal Employment Opportunity Commission has emphasized that some workers may be excused from mandatory vaccination policies if they have medical reasons, religious reasons or a disability covered by the Americans with Disabilities Act.

Employers also need to be wary of asking for too much information.

“(Employers) can ask people if they have been immunized, but oftentimes if someone says no, there’s a follow-up question,” Alvarez said. “Asking more than yes or no potentially could lead to protected information.”

There’s also a fine line between encouraging the vaccine and incentivizing it, such as with Bangor Savings Bank’s offer of $500 to fully vaccinated employees.

That can open another “legal can of worms,” Alvarez wrote in a recent guide for human resources professionals published by back-office technology provider MassPay Inc. of Beverly, Massachusetts.

“If some staff cannot get the vaccine because of legal reasons or because they have a disability (especially one covered under the ADA) that prevents them from getting the vaccines, the incentive itself could be viewed as discriminatory,” the guide says. “Incentives may also be seen as unlawfully coercive, can create wage and hour concerns” or expose an employer to liability under state or federal anti-discrimination laws.

As employers start drafting their return-to-office plans, they also need to be careful to protect the privacy of information such as an employee’s vaccination status.

“You can’t ask individuals to start wearing pins or buttons to identify themselves because that’s private health information,” Alvarez said. “It’s also high-risk to create teams of people who have been vaccinated and who have not, or to segregate them in any way.”

A DAUNTING TASK

OSHA requires that employers provide a safe working environment, which means that social distancing, masking and cleaning protocols must remain in place. Businesses will have to ensure ventilation systems and other infrastructure are up to the task while finding ways to keep employees from congregating.

At Wex, that’s exactly what they’re trying to figure out.

According to Melanie Tinto, the company’s chief human resources officer, Wex is aiming for a June return.

Tyler Carr, a senior finance director for Wex Inc., says he feels safe with the protocols at his workplace in Portland, but is looking forward to his colleagues returning to the Hancock Street offices, too. “You do lose the stuff at home, the five-minute touchpoints between meetings or at the water fountain,” he said. “I miss seeing people.”. Derek Davis/Staff Photographer

Carr, a senior director of finance at Wex, is among a handful of employees already working in the building. But for the majority, June would mark the first time they’d been back in the office in well over a year.

At first, the switch to remote work was a radical shift, Tinto said, but people have settled into their new normal, and company officials are now weighing how to get people excited to come back to the office again.

“I don’t know if it’ll ever look the same way it did before COVID,” she said.

It’s likely that schedules will allow more flexibility to work from home, or even a “hybrid” model that includes both remote and in-office work, Tinto said.

Carr usually works from the office two days a week.

He feels safe with the protocols in place and is looking forward to when more people come back.

“You do lose the stuff at home, the five-minute touch-points between meetings or at the water fountain. … I miss seeing people,” he said. “It’s kind of strange to be here when it’s completely empty.”

STRANGE NEW WORLD

Itza Bonilla-Hernandez hasn’t ever had the opportunity to enjoy the full office experience.

A 2020 graduate of Bowdoin College, she entered the workforce midpandemic and currently goes into the office just once a week.

The majority of her co-workers at Boston market research consulting firm C Space work remotely, but for her first job out of college, Bonilla-Hernandez wanted the experience of getting ready for work, putting on work clothes and leaving the house in the morning.

Because of the pandemic, she’s still not comfortable taking public transportation, so she takes an Uber to work, an expense she said is quickly adding up. She completes symptom screening questions, has her temperature taken and goes to the desk she has already signed up for.

Bonilla-Hernandez said she feels safe there, but she and many other new hires are ready for something closer to the full office experience.

“We haven’t gotten that chance and don’t know what that was like,” she said.

Like many other companies, C Space hasn’t yet released a full reopening plan, but according to Bonilla-Hernandez, managers have said they won’t make employees come back if they’re not comfortable with it.

“They understand that even if you have the vaccine, you’re not invincible,” she said.

Andrea Marquis, employee success specialist at Systems Engineering in Portland, said she is being a little more cautious.

After working from home for more than a year, she is hopeful for a hybrid return sometime in the coming months but isn’t ready just yet. 

“Until I feel like we’re on a real full decline, and the majority of people are vaccinated, I won’t feel comfortable going back,” Marquis said. “I don’t want to get anyone sick, and I don’t want to get sick from anyone else. I’ve dealt with health issues in the past, and that’s one less thing I want to combat.”

Still, she has mixed feelings.

Aside from the health concerns, Marquis, who lives in Gray, has a lengthy commute each day and said having the extra hour and a half that normally would be spent in the car has been good for her physical and mental health. On the other hand, she misses the camaraderie and collaboration with her co-workers.

“It would be great to get back in, but I would like the option to work from home,” she said. 

Offering that flexibility is something Rose, the Drummond Woodsum attorney, said is likely to be critical for employers from now on.

Soon, employers will be examining their ethos, he said, taking a second look at policies that go beyond whether employees can work remotely, such as flexible work schedules, days working from home, and dress codes. 

Rose said it could be a simple matter of saying, “Now we have distancing, we have masks. You’ve been vaccinated, you have to come to work,” but many will have to consider, “How do you value this person? How important is it? Employees don’t grow on trees.”

Early in the pandemic, many Maine employers shifted to remote work out of necessity and realized employees could still work effectively from home, he said.

“The expectations of employees may have changed. … There are legal issues about who you can require to come back and (ethical) issues about should you require it and how do you do right by your employees and maintain a sense of community,” Rose said. “There are as many variations as there are people, but the employer that’s more flexible” will be the one to better attract and retain people.

WHAT DO WORKERS WANT?

Surveys are showing similar results.

A survey of more than 7,000 Maine state employees conducted in May found that most were happy working from home, and only 5 percent wished to return to their workplace full time.

According to the survey’s results, 82 percent were satisfied with their remote work situation. It found that 38 percent would prefer a combination of office work and remote work, and 36 percent would like to continue working entirely from home.

In a more recent Live + Work in Maine survey of about 300 employees, 42 percent of respondents said they work remotely for either a Maine-based or out-of-state company. About 16 percent said they work under a hybrid model for a Maine company.

Of those, 77 percent said they’ve been working remotely for fewer than three years, and 81 percent said that, post-pandemic, they plan to either work from home all the time or at least some of the time.

Many operations are taking those feelings into consideration.

At Wex, if someone wasn’t comfortable coming back, the company likely wouldn’t force the issue, Tinto said.

But according to Alvarez, if an employee is vaccinated or does not fall into one of the protected categories and chooses not to come back, the employer is still within its rights to require that they do so.

Tawny Alvarez, a partner with Verrill’s employment and labor practice group, works from her home office in Scarborough on Thursday. To avoid legal pitfalls, Alvarez recommends that employers encourage workers to be vaccinated instead of making it mandatory. “Once the state of emergency has been lifted,” she said, “it’s a really hard argument to say one of the job duties requires you to be immunized.” Gregory Rec/Staff Photographer

“If you are able to show that based off the protections that are in place that you’re at a higher risk, you can ask for a reasonable accommodation to work from home,” she said. “(But) if an employer is offering all the protections and you don’t want to go to work because of the fear surrounding it, there are not a lot of protections in place.”

“Unless they have a reason to be accommodated … you can draw a hard line and require them to come back,” said Peter Callaghan, a labor attorney at the Portland law firm Preti Flaherty, during a vaccine information panel for employers on Thursday.

“If someone is, without any valid reason, refusing, you can take some tough action against them if you have to,” agreed attorney Kenneth Rubinstein, also of Preti Flaherty. 

That said, “Employers have to continue following safety protocols,” Callaghan said. “You need to be following safety requirements to have a leg to stand on.”

For employers that do plan to bring employees back – either full time or part time – Mills said there are several elements to consider, including the continued need for social distancing. Is there enough space between desks and a system in place to prevent employees from gathering too closely in common areas?

Those conversations are happening around the country.

At C Space, Bonilla-Hernandez said her bosses have announced plans to relocate the agency to a building with more collaboration space and room to spread out.

Wex previously announced plans for a $50 million operations center in Scarborough but has hit pause on the project as officials reevaluate the company’s “global real estate footprint,” Tinto said.

Employee preference will have a big say in how that project evolves, she said. For example, if workers prefer a hybrid model, there might be more unassigned work spaces at the office and fewer designated ones.

“It’s an ongoing dialogue,” Tinto said.

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