Labor Law: Return to the office and COVID-19

If employees don’t get permission to telework one day a week from the agency head, they must return to the office on July 5. For additional telework days, employees need to get approval from the agency head.

The move by organizations to require employees to return to work after the Pandemic is gaining traction. Musk told employees that if they didn’t show up, he would assume they resigned, according to a report.

If employees have been teleworking due to the Pandemic, it is time to get them back into the office.

I have some advice on how to do it.

• Be clear on the expectations. While Tesla’s policy appears rigid, the expectations are clear.
• Be prepared for employees who don’t want to return to the office. There are many reasons an employee might be resistant to return to work. Some reasons include fears of COVID-19, child care, elder care, pet care, commuting and the convenience of working at home. Employers need to anticipate all of these objections and be fully prepared to address them.
• Employers should evaluate the “COVID” reason on a case-by-case basis. Admittedly, some employees will use COVID as an excuse to stay home even though they are otherwise living their normal lives outside of work. That an employee fears catching COVID by coming to the workplace, at this point into the pandemic, will generally be insufficient for an employee to be entitled for an exception.
• Employers should follow the Americans with Disabilities Act. Some employees will have a disability that will prevent the employee from exposure to others. This might include, for example, an employee undergoing active cancer treatment. When receiving such a request, employers should engage in the discussion and obtain medical documentation of the need for the accommodation. Merely because an employee asks to telework doesn’t mean that employee is entitled to it. Even if an employee was on an accommodation previously, the employer is entitled to updated medical documentation that justifies the need to work remotely. Most employees, including those with disabilities who might be immuno-compromised or who suffer from asthma, can likely return to work safely with mitigation strategies, such as mask wearing and social distancing, in place. The employer can consider alternatives to remote work as long as they are effective. If returning in person is now an essential job function, then the employee is not qualified for the job and can be transferred to a vacant open position or face discipline and even termination.
• Create a solid telework agreement. Prior to the pandemic, employees who worked remotely occasionally or always were generally required to certify that, during working time, they were not engaging in other activities such as child care or elder care. While the occasional need may arise in a home, remote work should not be a substitute for child care, and most telework agreements clarify that an employee working remotely with young children must have separate child care. Post-COVID, it is likely these restrictions might be relaxed, but employees who are engaging in active child care or elder care while working are likely distracted and will not be in a fully engaged working environment. Employers tolerated this during the unique circumstances of the pandemic, but finding middle ground will be important.

It is important that employees feel supported in their work-life balance. Many employers are thinking about a hybrid model.

Studies show that living at work can cause a lot of stress. Half of the employees hired during the Pandemic will look for a new job in the next 12 months, according to a Work Human study. This is problematic for organizations trying to build trust because remote employees are having difficulty connecting with the company culture. A hybrid model could be the best approach.

Karen Michael is an attorney and the president of a company called Karen Michael PLC. She can be contacted at stayhired@stayhired.net.