Post-COVID-19 Return to Work Issues: What Employers Need to Know

Obermayer Rebmann Maxwell & Hippel LLP

Obermayer Rebmann Maxwell & Hippel LLP

As the end of summer approaches, many employers are getting ready to bring their employees back to in-person work and returning to a normal office or workplace environment.  However, as much of the American workforce has spent over a year working remotely, employers should expect to meet some resistance in resuming pre-pandemic operations.  With an extremely competitive job market, one of the greatest risks with implementing a strict return-to work policy is losing valuable employees or employees with specialized skill sets.  Allowing some amount of remote work on a permanent basis can be an effective (and sometimes necessary) compromise. 

Unfortunately, allowing remote work is not without potential headaches for management and HR.  Employers that allow remote work should be prepared with written remote work policies and/or employee agreements to communicate expectations to employees in advance and obtain employee buy-in for compliance.  Most importantly, a remote work policy should clearly state that the employer retains the right to modify or discontinue remote work at the employer’s discretion.  Other key points to include are:

  • Neutral/non-discriminatory remote work approval and eligibility factors;
  • Expectation regarding work output, productivity, and work hours;
  • Employees’ obligation to communicate regarding any obstacles or disruptions to remote work;
  • Expectation for in-person participation in future meetings or events;
  • Legal compliance issues such as time reporting and time approval for non-exempt employees;
  • Confidentiality and security requirements and expectations;
  • Employer policies/rules remain in effect unless employees are notified otherwise; and
  • Expectations for maintaining a safe remote workspace.

The safety of employees is paramount.  Worker’s compensation laws will cover injuries to employees working in a remote capacity, however, they will not extend to family members who may suffer an injury in the remote workspace.  Employers may wish to require that remote work employees obtain insurance coverage, particularly if there are other security risks involved.

Employers who allow non-exempt employees under the Fair Labor Standards Act (“FLSA”) to work remotely should use caution in drafting their remote work policies to avoid claims for unpaid hours or overtime.  All non-exempt employees should clearly understand their time recording and reporting requirements so they are not working any unauthorized overtime hours and complying with state and local meal and rest break requirements (particularly in stringent break time states such as California).  Similarly, if any employees are on leave under the Family Medical Leave Act (“FMLA”), or similar state or local sick leave laws, the employer must ensure those employees are tracking and recording their time properly.  In both of these situations, it may be difficult to track such employees without their physical presence in the office. 

The ability to work remotely is typically viewed by employees as a benefit, whereas, the denial of remote work is viewed as a punishment (or, in the parlance of employment law, an adverse employment action).  Accordingly, any decision to deviate from an established remote work policy must be supported by legitimate business reasons.  Employers should strive to avoid any perception of disparate impact or disparate treatment, which could give rise to claims of discrimination if, for example, employers allow more men to work remotely than women or vice versa.  Even if there is, ultimately, no viable claim of discrimination, the cost and burden of defending such a claim is significant. 

Accordingly, employers should establish written, non-discriminatory criteria and processes for evaluating the suitability of remote work.  For example, employers may want to consider whether: 

  • Work can be performed effectively outside the office, i.e. does not require regular access to materials that cannot be removed from the office;
  • Work does not depend on regular, in-person contact with other employees, clients, or the general public;
  • There is no adverse impact on the performance of other employees;
  • Necessary contact with other employees or clients is sufficiently predictable;
  • Necessary technology and equipment is available; and
  • Safety and security of employer and/or client property can be assured.

To ensure employees are aware of their obligations while working from home, many employers also utilize a remote work agreement that employees review and sign.  Keeping an open dialogue with employees and understanding employees’ needs is an important element in both legal compliance, but also recruiting and retaining employees in a competitive job market. 

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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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