The COVID-19 pandemic has had a lasting impact on the way we work, and especially on where we work. Businesses are facing this new reality as they make the decision to remain wholly remote, apply a hybrid model or implement a full return to in-office operations. When considering total or partial return-to-work policies, leaders should keep a number of things in mind.
From a practical perspective, some employees want to continue working remotely, and businesses should consider employee preference when implementing return-to-work policies. Simply put, requiring a return to in-person work can affect employee morale and retention. Additionally, requiring employees to be in the office can shrink a potential labor pool in a highly competitive market.
Remote work has also resulted in benefits to businesses. Many have learned they did not experience decreased productivity or other negative effects as the result of remote work that they may have feared prior to being forced to allow it. Some employers even experienced positive effects, e.g., increased productivity and decreased overhead costs.
Technology has enabled work to be done remotely. However, for many businesses, there is no substitute for at least partial in-person work, and certain industries and positions require it. Also, physical presence in the workplace is important for company culture and impromptu water cooler talk. So, for businesses that decide to implement a return-to-work policy, what does that look like?
First, make returning to work safe. Although COVID-19 case numbers are declining, there is still a concern for employees with vulnerable family members. As such, businesses should continue to encourage good hygiene and provide hand sanitizer and increased cleaning and disinfection practices. Continue to limit large gatherings and worker travel and remind employees to stay home if they are experiencing symptoms. Voluntary masking should also be permitted.
Second, understand that some employees simply do not want to come back to the office. When employees refuse to return to work, or request to continue to work from home, the reason and explanation behind the request is important. Such requests can be denied if the only rationale is that the employee prefers to work from home and does not want to go into the office. Likewise, it is unlikely that fear of the virus, for the employee or for a family member, will be a legally defensible excuse for refusing to work in the office. However, such requests should be treated consistently to avoid any discrimination issues.
Third, when an employee requests to be able to work from home as a reasonable accommodation due to a disability, an Americans with Disabilities Act analysis must be done. These requests may be made for any disability-related reason, including a disability that may make an employee particularly vulnerable to contracting COVID-19. Businesses should provide employees with disabilities with reasonable accommodations, so long as the accommodation allows the employee to perform the essential functions of their job and does not impose an undue hardship on the business.
Remote work may be an option, but a separate workspace or adjusted hours may also be considered. All such requests and conversations should be handled on a case-by-case basis, taking into account the employee’s disability and work duties, as well as potential accommodations and hardships on the business.
Ultimately, while the prospect of returning to work is exciting, it comes with challenges that must be addressed. ●
Anne Marie Schloemer is an attorney at Perez Morris
