As governmental regulations surrounding the COVID-19 pandemic loosen, employers with a remote workforce will have increasing opportunities to transition back into the physical workplace. To facilitate this return, employers should develop a reopening plan and enact policies to manage numerous considerations—including fulfillment of business operation targets, compliance with continuing legal and regulatory obligations and preservation of employee satisfaction and the desired company culture. Because each employer will have different needs based on industry, size, state and local regulations, and unique practical demands, there is no one-size-fits-all standard for reopening. This article highlights some of the key issues that employers should evaluate when moving towards a reopened physical workplace.
Before reaching the question of how to transition back to the physical workplace, employers should first examine whether a full or partial remote workforce can provide operational efficiencies or cost savings that are unavailable in the physical space. If a transition is appropriate, employers should not assume it means an immediate return to pre-pandemic operations. The pandemic has changed the practices and expectations of both employees and consumers, and employers should account for these shifts as they develop a plan. While a business may be legally permitted to reopen on a certain date, it may be better served by reopening on a later date, at partial capacity, or in stages.
Each state and municipality will have different guidelines for reopening, which are further informed by federal agencies and authorities. The Centers for Disease Control and Prevention, the Occupational Safety and Health Administration, and the Equal Employment Opportunity Commission (EEOC) have all issued relevant guidance, including the creation of social distancing policies, COVID-19 testing, temperature checks, and symptom assessments. Such guidance may require modifying workspaces and implementing cleaning and disinfecting procedures, as well as policies to guard against discrimination or safety violations.
Employers should be mindful that bare legal compliance may not be the best decision for the business. For example, employers should consider employee requests for an accommodation to continue working remotely or flexibility on an individualized basis, even if an accommodation is not legally required. Under Title I of the Americans with Disabilities Act (ADA), employers are required to grant reasonable accommodations to qualified employees to enable them to perform the essential functions of their job if it does not cause undue hardship to the employer. A reasonable accommodation is a modification or adjustment to a job, the work environment, or the way things are usually done during the hiring process. Employees will only qualify for reasonable accommodations if they have a disability under the ADA—a physical or mental impairment that substantially limits major life activities. For employees with disabilities, remote working will not be automatically granted as a reasonable accommodation. Instead, the employer needs to engage in an interactive process with each employee with a disability to find a reasonable accommodation that does not cause undue hardship on the employer.
EEOC guidance specifies that employees without a disability are not entitled to accommodation to work remotely on the basis of concern of virus transmission, including the risk of transmission to a family member who is at a higher risk of severe illness from COVID-19. Although not required, employers may still benefit by engaging in a dialogue with a non-qualified employee requesting remote work to discuss their concerns and possible accommodations. There may be sound reasons for an employer to voluntarily accommodate an employee on an individual basis, such as maintaining workplace satisfaction by allowing an employee to work remotely due to a concern for an at-risk family member.
Once it is developed, the reopening plan should be communicated to employees along with information for contact persons designated for employee follow-up. Employers should be ready to address employee concerns regarding the health and safety protocols implemented in the workplace, and the ramifications if an employee refuses to return to the workplace by the identified date. Much of the hesitation employees may feel in returning to the workplace can be mitigated by clearly articulating the safety procedures put in place.
In addition to engaging with employee questions and requests regarding reopening, employers must also anticipate an adjustment period upon returning to the workplace. Just as the transition to remote work involved rapid changes to employees’ routines, habits and job duties, the transition back to the workplace will be accompanied by similar changes. Expect employees to have a range of reactions to a return to the office. While some employees have thrived in a remote environment, relishing the elimination of commute time and performing productively from home, others have found it quite challenging. After spending months avoiding in-person interactions, some employees may feel trepidation at resuming work at the office. Acknowledging these challenges and outlining a clear plan for reopening will minimize disruption, increase employee satisfaction, and provide an opportunity to communicate company values and culture.
An effective reopening plan can minimize liability exposure by complying with federal, state and local regulations while also conveying a commitment to safety, employee retention and efficient operations that make long-term business sense.