Kicking Off a New Season and Moving Toward the End Zone

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It’s September, which happens to be my favorite month. The leaves start changing, and we Midwesterners get to pull cardigans and boots out of storage in preparation for the inevitable chilly day that will hit within these next thirty days. (Indeed, here in Chicago, we often get to experience a full year of seasons during the month of September.) And, I was born in September, which maybe has a little to do with it.

It makes for great timing for my very first contribution in this space. But for all the above, the real beauty of September is that it brings us to my favorite season. Not apple picking, not autumn, but football.

The Hook and Ladder
 

We’ve had a couple of weeks of college games and are getting ready to kick off the NFL season later this week. Football looks quite different than it did at this time last year. Stadiums have been packed, for one thing. And although we may still be dealing with Covid-19 and its variants for some time yet, vaccines appear to be preventing hospitalizations and sidelining the worst effects of infection; so there’s much less talk of the quarantines and forfeited games that disrupted last season.

It’s hard to dispute that our progress in returning to something approaching normalcy has a lot to do with Covid-19 vaccines, and the question of vaccine mandates figures prominently into the public conversation these days. Consensus is that (subject to reasonable accommodation requirements) organizations can require their employees to be vaccinated. But with the realities of state and local mandates, industry practices, and employee sentiment, employers’ decision-making about how to best protect their employees can be as tricky as running the hook and ladder.

Throwing a Challenge Flag

The NFL is one organization that has not mandated vaccines, and when Jacksonville Jaguars head coach Urban Meyer’s comments last week suggested that the team considered players’ vaccination status when deciding who to cut from their roster, it prompted the NFL players’ union to investigate. While there’s no mandate, the NFL’s protocols for unvaccinated players differ significantly from those in place for vaccinated players, including with respect to the potential for missed playing time in the event of exposure to someone infected with the virus.

As you might imagine, a player’s availability (or unavailability) to play impacts both the team’s strategy and the player’s compensation. There are currently NFL teams representing 100% vaccination of their players, but elsewhere in the NFL coaches and management have expressed concern at low vaccination numbers. Others have noted that while vaccination status is not determinative, players’ availability is a factor in roster decisions.

Reviewing the Game Tape

If that all sounds familiar, it’s probably because it’s not so different from what employers across industries are currently facing. Addressing the question of whether and how to mandate or encourage employees to become fully vaccinated poses a challenge for employers. What we are seeing in the NFL, counsels that in facing that challenge:

  • Employers may need to plan for lost headcount where employees refuse to comply with vaccine or other policies related to Covid-19;
  • Covid-19 related matters, including vaccines, safety protocols, and incentives, will often touch on subjects that must be addressed with unions representing a company’s employees; and
  • No different than non-Covid related policies, unclear, inconsistent, or equivocal communications cause trouble.

From the Gridiron to the Workplace

While Covid-19 brings some unique and complex issues to the workplace, there’s fortunately no need for employers to completely rewrite their play book. As they would when implementing any new policy or practice, employers should communicate clearly with employees, including managers, regarding what is required of them, and engage in interactive communications where employees raise the need for an accommodation.

Consideration of impacts to other policies and practices (for example, sick leave and paid time off, working hours, and recordkeeping) will allow companies to prepare HR and payroll systems and processes, which in turn helps to streamline implementation and ensure consistency with respect to enforcement and compliance. Where employees are represented by a union, bargaining over the decision to implement new policies and/or the effects those policies may be necessary and can affect both the timing and scope of execution. In a non-union workforce, employers should be mindful that expressions of concern about Covid-19 related policies and procedures may constitute protected, concerted activity.

September feels more optimistic than it did last year. Whether it’s football, vaccines, or both, I’ll be here hoping—with apologies for one more cheesy football analogy—that we can keep our teams on the field and moving toward the end zone.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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