As Covid-19 safety restrictions loosen, many employers are urging workers to return to the office after nearly two years (or more) of remote work. Employers have questions about what they can and cannot require of their returning employees—especially when it comes to requests for continued remote work and handling vaccine mandates.
Below are some steps to help guide the back-to-office process. By offering some flexibility, employers could gain a competitive advantage in recruiting and hiring.
Steps to Success
Employers can take the following five steps when returning employees to the office to ease the process both for workers and employers.
- Determine which positions need to return to the office and how many days a week your employees are required to be in the office.
- Determine and implement proper Covid-19 safety protocols necessary for returning employees to work and ensure all safety policies are uniformly followed and enforced.
- If you do not have a clear, comprehensive accommodation policy to address employee concerns on returning to the workplace, develop one. Train your managers and supervisors on the policy, and ensure the policy is consistently applied.
- Explain to employees the process for returning to work, the reasoning behind the decision to do so, the safety protocols in place, and the process for requesting an accommodation. Transparency will go a long way.
- Anticipate the areas where you expect potential employee pushback and complaints and develop a clear plan to handle those issues.
Continuation of Remote Work
One of the most common return-to-work issues is the request for continued remote work—some are reasonable accommodation requests related to a physical or mental condition, and others are simply personal preferences. After two years of trauma, an increasing number of employees are suffering from anxiety and other forms of mental health concerns. Many such workers are hesitant to return to the physical workplace.
Under the Americans with Disabilities Act (ADA), employers are often obligated to engage in the “interactive process” with employees to determine if a reasonable accommodation is necessary and can be made. Generally, the interactive process involves the employer analyzing a job to determine its essential functions, consulting with the employee to determine the precise job-related limitations imposed by the disability, and communications between the employer and the employee regarding potential reasonable accommodations that would allow the employee to perform the essential functions of the job without causing the employer an undue burden.
When these concerns are not addressed properly it is very likely that a conflict will result. In fact, the Equal Employment Opportunity Commission reported that nearly 30% of ADA-related charges in 2021 dealt with mental health issues—and this number will likely increase with more employees returning to the office.
To qualify for a reasonable accommodation, an employee’s anxiety must be considered a “disability” as defined by the ADA. Many medical conditions that could meet the requirements of a disability under the ADA have anxiety as a symptom, but a generalized anxiety or fear of contracting Covid-19, by itself, likely does not qualify as a disability.
If the need for the request for an accommodation is unclear, employers can as a part of the interactive process can inquire into an employee’s purported disability as it related to the request for accommodation. In the context of returning to the office, if an employee simply says they are “scared” or “worried” this additional inquire assists the employer in determining the necessity, the scope and duration of the requested continued remote work. Employers should be careful to only ask for information that is actually needed to make a decision on the request for accommodation.
Full Time or Part-Time Remote Work?
Remote work can be a reasonable accommodation, but it will not be in every case—even if the employee worked remotely during the pandemic. Whether it qualifies as such will depend on the essential functions of the job, some of which could have been temporarily eliminated during the pandemic to allow employees to work from home.
Employers have the right to restore all essential functions. Continued telework is not guaranteed. Just because an employer removed some essential functions during the height of the pandemic does not mean that it is reasonable to continue to do so.
Whether continued remote work is a reasonable accommodation will be the focus of many ADA lawsuits in the future because employees who worked from home during the pandemic will claim that remote work cannot be an undue hardship on the company. Employers should therefore make sure the interactive process is robust,well documented, and there is an objective reason before denying such an accommodation.
In addition to workers with mental health concerns, employees with asthma or who are immunocompromised from other health conditions may also not want to return to the office due to the possibility of contracting a more severe case of Covid-19. Employers should follow the same process and engage in the interactive process.
These employees may not qualify for remote work, but other potential reasonable accommodations include staggered schedules to avoid high-traffic situations, isolated workspaces, or continued mask wearing.
Besides reasonable accommodation requests related to mental health and other health concerns, employers may face work-from-home inquiries from workers based purely on personal preference. In such situations, the main consideration with these employees is maintaining positive employee relations.
If they are not offered this option—perhaps even a hybrid solution permitting them to work from home on a part-time basis—they may quit and find a job that offers such flexibility. Given the current shortage of workers, employers must evaluate how necessary it is for employees to return to the office full time. Employers may want to consider a remote work policy. If a remote work policy is implemented, employers should ensure the policy is clear and applied with consistency.
A related return-to-work question is whether companies that implemented a vaccine mandate should now rescind it. Many employers are rescinding their mandates in an effort to keep current employees and attract new ones. This, however, could have the effect of increasing the anxiety of those employees who are afraid of contracting Covid-19 if forced to return to the office.
Employers looking to increase their workforce will need to evaluate what they believe will attract and retain the most workers. Items they should consider include:
- Can employee anxiety can be assuaged by a testing and masking mandate?
- The costs of imposing a testing and masking mandate. Generally, employers are required to pay the costs associated with a non-government-imposed testing and masking mandate. Additionally, employers may have to compensate their non-exempt employees for their time spent testing.
- Will employees who have chosen not to get vaccinated be willing to work at a company with a testing and masking mandate? Generally, unvaccinated workers are likely not inclined to work for an employer with such requirements.
- Is the company prepared to deal with the anger from current employees who begrudgingly became vaccinated to save their jobs?Has the federal, state or local government implemented any requirements that restrict the company’s ability to make a decision concerning these issues?
Employers who utilize the above steps and engage in an “interactive process” with employees will be in a better position to tackle the challenges associated with returning to the office. In addition to reducing the risk of litigation, these steps may also provide a competitive advantage in recruiting and retaining top talent.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Emily N. Litzinger is a partner in the national labor and employment law firm Fisher Phillips, in the Louisville, Ky., office. She counsels and defends employers through the intricacies of labor and employment law and develops preventive strategies to ensure compliance and avoid litigation.
Phillips L. McWilliams is an associate with Fisher Phillips and practices out of the Columbia, S.C., office.