When COVID vaccines rolled out months ago, employers and employees alike began looking forward to getting back to the office, where they could once again work alongside coworkers instead of isolated in their homes.
Even though the delta variant has stepped up fears and changed some employers’ plans, many are forging ahead and going back to prepandemic workplaces. That means employers have a lot to think about, and attorneys who advise employers say they may need to do some out-of-the-box thinking.
Dealing With Resistance
With the pandemic dragging on, some employees worry about exposure to the virus if they return to the office. Others are still dealing with childcare and school closures, and others are reluctant to go back when they’ve come to appreciate working from home.
So, how should employers approach a return when many employees are resistant?
“Employers should be thoughtful and intentional about articulating the reasons why on-site work is necessary,” says Susan W. Kline, an attorney at Faegre Drinker in Indianapolis, Indiana. “That rationale needs to go beyond organizational leaders’ preferred work style and look to the responsibilities of all personnel who are required to do at least some work on-site.”
Kline points out there may be “value in personal encounters that occur when people are working in the same space for mentoring, building stronger interpersonal relationships, and creating greater opportunities for spontaneous idea generation and problem-solving.”
Therefore, employers should communicate the reasons for calling employees back to the office—reasons that often go beyond just needing the equipment and space found in the workplace.
Assessing employee performance also requires careful communication. Early on, employers likely were more lenient in their evaluations than they would have been had the pandemic not happened, but now that people have had time to settle into their new routines, employees need to know what’s expected.
“For many employers, it’s time to hit ‘reset’ on performance expectations,” Kline says. “If expectations have been lax because of the limitations of remote work or recognized personal challenges, employers need to gently let employees know that although things are far from the way they were going into 2020, we are now at a point where full-time best efforts are required and accountabilities will be re-established.”
Employers also need to recognize that many employees are still dealing with pandemic-related hardships. Listening to the various challenges can help.
“Allowing employees to have input into how performance should be evaluated going forward can help managers gain insight into team members’ challenges, their new ideas that have come out of our shelter-in-place experiences, and their career development plans and desires as they may have evolved over the last year and a half,” Kline says.
Wage Concerns Related to Continued Remote Work
Even though many employees want to continue work-from-home arrangements and many employers are willing to accommodate them, wage and hour concerns must be considered.
Kline says the longer the remote work model continues, the greater the potential for legal exposure in such areas as:
- Claims for reimbursement of business expenses, such as a portion of home Internet access costs;
- Risks the employer isn’t withholding taxes for the employee in the appropriate state or locality;
- Off-the-clock working time not being captured and paid because time recording systems aren’t well-adapted to the remote work model, including checking messages outside of the normal workday; and
- Understanding what constitutes noncompensable commuting time versus compensable business travel time.
Mental Health Issues
With employees continuing to juggle work, school, childcare, and other concerns, management needs to keep mental health issues top of mind, including how they may implicate the federal Americans with Disabilities Act (ADA) and similar state laws.
“This is an area where managers likely need specific training, both to recognize when an employee may be struggling with mental health challenges and to know how to provide support without running afoul of laws like the ADA,” Kline says. “That can be a delicate balance.”
Kline says leaders need education about resources available to employees as well as for themselves. The labor shortage makes that education even more important.
“Employees may be overworked, which contributes to their struggles, and supervisors may be leading departments that are understaffed, making it difficult to prioritize supportive one-to-one interactions,” Kline says.
The mental health problems triggered by the pandemic mean many employees will be seeking accommodations as they’re called back to the office. The ADA requires that workers with physical or mental impairments that substantially limit a major life activity, such as the ability to work, are entitled to reasonable accommodations to help them perform their jobs.
That doesn’t mean workers are entitled to whatever modification they request if another change would cause less disruption in the workplace, but employers need to enter discussions with employees with an open mind, says Lauren Moak Russell, an attorney with Young Conaway Stargatt & Taylor, LLP, in Wilmington, Delaware.
In an article for Delaware Employment Law Letter, Russell wrote that discussions of accommodations are often “plagued by catastrophic thinking.” Too often, she says, managers fear that if they grant an accommodation, then everyone will expect something.
“But such an approach is unproductive, and fears of a slippery slope aren’t a valid basis for denying an accommodation,” Russell wrote. She suggests managers get past their fears by considering the worst-case scenario an accommodation might produce.
“Of course, if the accommodation truly poses an undue hardship to your business or requires you to eliminate an employee’s essential job function, then by definition it isn’t reasonable and doesn’t have to be granted,” Russell wrote. “Considering the possible outcomes can help quell managers’ fears and make the discussions more productive.”
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.