Getting the Group Back Together: 4 Legal Considerations When Bringing Employees Back to the Office
By Michelle Blackmore, Vice President of Human Resources, LegalShield
With the pandemic waning, many employers are bringing employees back to the office. But like a parent who attempts to revoke a teenager’s driving privileges, companies are finding it difficult to prohibit remote work after employees discovered they could effectively perform their duties from home, saving both time and money.
Companies banning remote work for jobs that can be done from anywhere may have a challenging time recruiting or retaining top talent. In a survey conducted by Owl Labs, 59% of respondents said they would be more likely to choose an employer who offered remote work over those who did not.
This begs the question: Is it legal to suddenly require employees to return to the office if they’ve proven they can work effectively from home? Generally speaking, employers are within their legal rights to enforce this requirement; however, they should consider a range of options, depending on the specific circumstances in question.
Janell Stanton is a senior associate at Wagner, Falconer & Judd, a LegalShield provider law firm. She focuses her practice on management-side employment law, employment litigation, and corporate law. She advises management on strategies, methods, and policies designed to maintain compliance with federal, state, and local laws to minimize risk and exposure to potential litigation.
I recently spoke with Janell about four issues for companies to consider when bringing employees back into the office:
- Disability accommodations.
One of the biggest legal issues related to this topic is employers requiring employees with disabilities to come back to the office.
“A lot of companies are hearing employees say, ‘I don’t want to come back to the office because I have a disability, because I have an autoimmune disorder, or because I’m receiving cancer treatment,’ for example,” Janell explains. “Employers should consider allowing employees to work from home as a reasonable accommodation under the Americans with Disabilities Act. Employers have been sued when they have inappropriately denied an employee’s request to continue working remotely. This is especially true if that employee can successfully work remotely.”
If having workers physically come back to the office is the best way for the company to operate, then that requirement should stand. However, employers should be sensitive to those who can do their jobs from anywhere and may need accommodations for disabilities
2. Reducing compensation for remote employees.
Some companies think that if employees no longer must pay for things like commuting and lunches, they can scale back on compensation. While no law prevents this, reducing pay is not recommended in these situations if the employee continues to meet job requirements after transitioning to remote work.
If you are considering altering employment terms and conditions such as pay, make sure you check your state’s laws: In some states, like California, employers are required to give notice before changing an employee’s pay.
Janell advised, “I would point out a few caveats: First, if you have an employee that is exempt from minimum wage and overtime requirements, and you reduce their pay, you must make sure you are still meeting the minimum salary threshold pay per week. Also, you should consider why your employees might be working from home. For example, if you have a higher contingency of female employees working at home due to childcare needs, and you decide to reduce the pay of employees working from home, you may inadvertently create some equal pay issues.”
3. Remote work harassment.
Employees can be harassed anywhere, including work events, through emails, or on Zoom calls. They can also be harassed by anybody. It doesn’t have to be an employee—it could be a vendor or a client. In the context of the job, regardless of where the harassment happens or who inflicts it, employers must protect their employees. For example, if an employee makes a report of harassment via a Zoom meeting, the employer is obligated to investigate and determine whether the accused engaged in harassing behavior. If they did, the employer must take the appropriate next steps, whether that be writing up or even terminating the harasser. If the harassment was perpetrated by a vendor or client, the employer may have to terminate their agreement or prevent that vendor or client from having contact with employees.
“I’ve even heard of employees being harassed by delivery drivers bringing packages to reception,” says Janell. “You need to reach out to that company and see if they can send someone else because ‘this particular person is harassing our person at the reception desk.’”
It doesn’t matter who harasses your employees—if it happens, remedial action must be taken.
4. Decreased performance after transitioning to working remotely.
Some employees accurately say they’re more productive working from home. Others say that the increased responsibilities of homelife and work combined makes work more challenging. Regardless of an employee’s location, if productivity falters, termination is an option—unless the employee cannot access tools needed to perform their duties, for example, a VPN connection, a working phone, or special software.
“The general rule for employees working from home is that all of the same employment policies apply, regardless of an employee’s work location,” explains Janell. “That includes company productivity and performance standards. Employees who are not able to meet those standards can be disciplined to the same extent when they’re working from home as they can when they’re working from the office.”
Here again, exceptions may apply.
“Let’s say, you have an employee with some type of disability or compromised immune system, and they are working from home to mitigate the risk of contracting a serious case of COVID-19,” says Janell. “And suddenly, this employee’s productivity decreases, they’re not meeting their metrics, their performance is off. It could be tied to that disability. Perhaps that person is experiencing a worsening of their symptoms and a new accommodation should be provided. I would caution employers to first have a conversation with that employee and see what’s going on.”
She continues: “It’s also possible that same employee is working from their sofa, simultaneously watching TV all day. So, their productivity is terrible for reasons unrelated to a disability. Having a conversation about worsening performance is crucial.”
Performance issues could be caused by several factors, some of which may need to be accommodated. Janell advises employers to consider the option of bringing employees with performance issues back to the office and discontinue allowing them to work remotely.
These four factors are crucial for employers to consider as they navigate our new world of remote work opportunities. The pandemic has affected our workforce by helping employees learn about their options and rights in the workplace. To optimize performance and keep morale high, employers should work with their employees in determining work situations that benefit everybody. Keeping up to date on employment laws and maintaining open lines of communication will help set up the workforce for success – whether that workforce is in person or remote.