Employers attempting to emerge from the wake of COVID-19 are trying to define what a new normal will be in what may be a whole new world.  The expectation that a vaccine would lift the corona-curse, and return everything to how it once was, may have been a fantasy (thanks a lot, Delta variant!).  Instead, among the lingering effects of the novel coronavirus are employees wishing for (or, in some cases, demanding) flexible work options.

Once upon a time, in the not-so-distant past, many employers deemed remote work impossible, or at least impractical.  But those same employers were forced to embrace remote work in response to shutdowns and social distancing protocols.  While this adventure proved difficult for some, others found that teleworking was not nearly as villainous as expected.  In fact, some companies reported that employees were more productive overall and worked longer hours in 2020 as compared to 2019.¹   Likewise, some employees, who successfully navigated the uncharted waters of remote work, found the grass greener on the other side.

Employees have different reasons for requesting to work from home.  Some have medical issues and safety concerns that may not be fully addressed by vaccines. Some simply prefer the comfort of their own castle to that of the office.  Whatever the reason, employers expecting remote work options to turn back into a pumpkin once the COVID clock strikes midnight may be in for a surprise.  Surveys show that many employees are willing to take pay cuts, work more hours and give up benefits for positions that will allow them to work from home.² 

While teleworking may have been the white knight that got many companies through the initial coronavirus crisis, some employers have already shared that they will not champion widespread remote working options into the future.  Leadership from JPMorgan Chase & Co, Goldman Sachs and WeWork, for example, have come under fire for comments suggesting that remote workers will not be as competitive as their office-based counterparts.³   Google plans to alter its employees’ pay based on where they perform their work, with some employees opting to work from home indefinitely receiving pay cuts of up to 25%.⁴  Facebook is embracing a similar policy, as it predicts that 50% of its company could be working remotely in the next five to 10 years.⁵  While these policies have been met with criticism, they do foretell that remote workers are likely to encounter pushback in the near future.

Employers have a number of options in dealing with requests for remote work. Some employers have elected to embrace the new frontier and allow their employees to continue working from home.  Others have adopted a hybrid approach, wherein employees are permitted to work remotely on certain days while being required to come in on others.  Still others are maintaining their work practices of old and requiring workers to return to their office-based battle stations full time. This last option raises the question of what to do when an employee simply refuses to come back.

“I’m Not Coming In”

While businesses generally can terminate employees for refusing to return to the office, there are some exceptions for employees subject to legal protections that may require employers to make accommodations.  For example, employees who remain at high risk for COVID-19 and, therefore, cannot be vaccinated may request an ADA⁶  accommodation.  When those requests are made, the law requires employers to engage in an interactive process with these employees and to consider whether an acceptable compromise may be reached.

Lawsuits alleging that employers failed to meet their obligations to engage in such disability-related accommodations during the pandemic are on the rise, with over 3,000 COVID-related employment cases filed so far.⁷   Employers accused of failing to allow employees to work from home as an accommodation during COVID may potentially face liability in some of these cases.  The obligation to engage in an interactive process is not lifted during the pendency of a global pandemic.  Rather, even then, employers faced with requests for reasonable accommodations should consider the totality of the circumstances, including the particular job duties, any potential hardships posed by the accommodation, and whether that same accommodation has already been afforded to any similarly situated employees.

There also is a legitimate concern that the newly realized ease with which many employees worked remotely during COVID will have lasting impacts on non-COVID related lawsuits.  While there has been no change to the legal standards surrounding an employee’s request for teleworking as a possible accommodation for a disability, the landscape has changed.  For an employee who worked from their own home-based ivory tower, and did so successfully, an employer’s burden to demonstrate that remote work poses an undue hardship and is, therefore, not a reasonable accommodation, is effectively heightened.  In order to meet this burden, employers should be prepared to point to specific issues, problems and hardships that were caused by the employee’s remote work.

For example, some employers have indicated that working from home resulted in decreased productivity, miscommunication, declining morale and a reduction in useful interaction with customers.  Another legitimate concern is the extent to which training and mentorship may be impacted when everyone is not physically together in the office.  These considerations can help demonstrate that remote work creates an undue hardship and that an employer is, therefore, not required to provide this accommodation.

While a new day may have dawned in the world of remote work options, the reality is that in-person attendance is an essential function of many jobs and that employees who are unable to perform in-person work may, accordingly, not be qualified for certain positions.  For these jobs, it can be advantageous to expressly include that requirement in a written job description before the employee makes a request for an accommodation.  For example, language in a written job description indicating that the “ability to work in person in a fast-paced, stressful office environment” is necessary to a particular role is relevant evidence that an employer can rely on in a discrimination suit.  Courts routinely point to these written job descriptions to determine what may or may not be a reasonable accommodation for a particular positon. 

Possible liability is not the only concern facing employers post-COVID.  The potential disconnect between employers and employees over what the future holds for workplace flexibility is a factor in what some are calling the “great reshuffling” of workers leaving their jobs at historic rates.  With many employers struggling to fill their workforce, requests for increased flexibility are often being taken more seriously than ever before.  Studies suggest that some employees would prefer to take a pay cut in order to keep working from home.  Changes to work schedules and compensation structures are being utilized to incentivize employees’ return.  And, at a historically high rate, employers are embracing unprecedented flexibility and allowing employees to work from home where possible. 

The number of employees teleworking has declined in recent months, with only 25% of managers and professional workers teleworking in July 2021 as compared to 41% in January 2021.⁸   Still, recent surveys indicate that more than half of companies will continue to allow their employees to work from anywhere.⁹   For employers who are embracing remote work options on a more permanent basis, a number of other considerations have become relevant. The prevalence of employees working from home has encouraged many employers to rethink their office designs, questioning whether and to what extent assigned offices may be a thing of the past.

Employers also have to consider where exactly their work is being performed to ensure that all state and local laws are being complied with.  For example, a new Colorado law requiring heightened disclosure of salary and pay ranges has led to employers advertising remote work positions to specify that those living in Colorado need not apply – an exclusion that has sparked an investigation by Colorado’s Department of Labor and Employment.¹⁰   This law serves as a reminder that where work is performed does have legal implications.

Compensation and promotion track is another matter to address in fashioning remote work policies.  Companies like PricewaterhouseCoopers LLP have committed to tracking rates of advancement for remote staff versus office-based staff to ensure that its employees are being treated similarly.¹¹   Employers are also working to establish equal access to the same training and career development opportunities for all employees, regardless of whether they will be working remotely.  This equal access will be important in helping to avoid future discrimination claims that may arise from treating similar employees differently.

Back in the Office

Although permitting remote work may raise a number of issues for employers, returning to work in person presents additional challenges.  Employers bringing employees back to the office must determine whether and to what extent they should encourage vaccination.  A recent poll showed that 25% of companies with 1,000 employees or more were requiring proof of vaccination cards from returning employees, compared to 33% of companies with under 100 employees.¹²   These types of policies have met mixed reactions from employees.  Some feel that their privacy and personal choices are being hindered.  For employers who are already struggling to find and retain qualified workers, this could result in even more turnover or recruiting challenges. To combat this, some employers’ policies have focused on rewards rather than firm mandates.  Increasingly, major employers are requiring that their employees get vaccinated, unless they have a legitimate medical or religious reason not to.  At the same time, the federal government and many local governments are implementing vaccine requirements as a condition of employment.¹³  Many large employers are reporting that these requirements have resulted in a significant increase in the number of workers who report being fully vaccinated.  While higher levels of vaccination may greatly reduce the level of concern about returning to the office, it seems likely that the interest in remote work will remain significantly higher than before the pandemic.

Mask mandates have also been widely embraced.  Approximately 57% of companies with 1,000 or more employees and 41% of companies with less than 100 employees are requiring masks in common areas.¹⁴   Some companies have also implemented policies limiting the extent to which employees can meet with clients inside the office.  The majority of employers, large and small, have created formal “return to the office” plans to address these and other policies.¹⁵

Moreover, returning to work does come with a risk of exposure to COVID-19.  Some states have enacted laws providing personal injury liability protections against COVID-related claims to businesses.¹⁶   Several states have also taken action to extend workers’ compensation coverage to include COVID-19 as a work-related illness.¹⁷   Thus, employers should be considering what local and state laws have been enacted to address these issues. Many of these issues are further addressed in the article that follows.

While a lot remains to be seen as to the long-term impacts of COVID-19 in the workplace, particularly in light of the changes brought on by the Delta variant, it does not take a crystal ball to see that business as usual is not the reality faced by many employers.  All employers should be considering what, if any, changes COVID-19 should bring to their policies.

---

¹  Prodoscore, Prodoscore Internal Data 2020 Shows Shifting Workday Patterns and Productivity Gains, PRODOSCORE.COM, Mar. 12, 2021, https://www.prodoscore.com/wp-content/uploads/2021/03/Prodoscore-Internal-Data-Shifting-Workday-Patterns-and-productivity-gains.pdf.

²  Lisa Fleisher, Americans Are Willing to Take Pay Cuts to Never Go into the Office Again, BLOOMBERG, Aug. 3, 2021, https://www.bloomberg.com/news/articles/2021-08-03/return-to-work-americans-willing-to-take-pay-cut-to-never-go-back-to-the-office.

³  Vanessa Fuhrmans, Bosses Still Aren’t Sure Remote Workers Have ‘Hustle,’ WALL STREET JOURNAL, May 23, 2021, https://www.wsj.com/articles/bosses-still-arent-sure-remote-workers-have-hustle-11621771201.

⁴  Martin Coulter, Some Google Employees Could Face a Pay Cut of Up to 25% if They Work from Home Permanently, According to a Leaked Salary Calculator, BUSINESS INSIDER, Aug. 11, 2021, https://www.businessinsider.com/google-salary-calculator-work-from-home-pay-cut-technology-2021-8.

⁵  Lauren Fries, Mark Zuckerberg Said Facebook Employees Who Move Out of Silicon Valley May Face Pay Cuts, BUSINESS INSIDER, May 21, 2020, https://www.businessinsider.com/zuckerberg-facebook-salary-employees-moving-out-of-silicon-valley-2020-5.

⁶  Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.

⁷  Employment LitWatch, JACKSONLEWIS, https://www.jacksonlewis.com/covid19-litwatch?intIaContactId=g6TJQpk9gPgUXw7ICkcuoQ%3d%3d&intExternalSystemId=1.

⁸  Joe Mysak, Only a Quarter of Office Crowd Now Working from Home, BLOOMBERG LAW, Aug. 10, 2021, https://news.bloomberglaw.com/daily-labor-report/only-a-quarter-of-office-crowd-now-working-from-home-joe-mysak.

⁹  Andy Midici, How Company Size is Shaping Employer Covid-19 Protocols, ATLANTA BUSINESS CHRONICLE, Aug. 25, 2021, https://www.bizjournals.com/atlanta/news/2021/08/25/covid-19-vaccine-mask-mandate-work-employer.html?utm_source=st&utm_medium=en&utm_campaign=me&utm_content=at&ana=e_at_me&j=24860154&senddate=2021-08-26.

¹⁰  Division of Labor Standards and Statistics, Equal Pay Transparency Rules, 7 CCR 1103-13.

¹¹  Chip Cutter, If You Thought Working from Home Was Messy, Here Comes Hybrid Work, WALL STREET JOURNAL, May 25, 2021, https://www.wsj.com/articles/if-you-thought-working-from-home-was-messy-here-comes-hybrid-work-11621935000.

¹²  Midici, supra note 9.

¹³ As of the time of publication, the federal government is in the process of implementing new regulations requiring vaccinations of employees of federal contractors and vaccination and/or testing requirements of employees of employers with 100 or more employees.  These regulations are being implemented in accordance with President Biden’s Executive Order No. 14042, 86 C.F.R. 50985 (2021).  President Biden’s COVID-19 Action Plan, EXEC. OFFICE OF THE PRESIDENT (2021), https://www.whitehouse.gov/covidplan/.  The directive to OSHA for mandates for employers with 100+ employees did not come out of an executive order but through the COVID-19 Action Plan on the White House website.

¹⁴  Id.

¹⁵  Id.

¹⁶ See, e.g., Georgia Covid-19 Pandemic Business Safety Act, SB 359.

¹⁷  See, e.g., West Virginia Covid-19 Jobs Protection Act, W. Va. Code §§ 55-19-1 – 55-19-9.