New York businesses are finally re-opening and with this “new normal” comes many questions for employers and their employees. One question which has surfaced for many of PMP’s clients is, “do I have to allow employees who were working remotely to remain remote now that offices can return to on-site work?” The simple answer to this question is no, just because employees were remote during the height of the pandemic does not mean you must allow those employees to remain remote. But, there are many situations under which you should or must allow employees to continue working remotely.
The first thing for employers to consider is that just because New York is re-opening does not mean your organization must go back to on-site work. Instead, think about whether remote work was successful for your organization or not.
Try to answer a few questions such as: Was the productivity level appropriate? Many employers found that productivity was actually higher while employees were working from home. Ascertain whether technology issues are minimal. Some organizations have learned from this situation that they need to be more agile and thus are adapting their computer system to allow for remote work on an on-going basis. Organizations should consider whether remote work is in line with their company culture. If you are unsure of the answer to this question, you may want to look at some of the research on this topic. A survey from Owl Labs said that 24% of employees would take a pay cut to allow them to work from home and only 19% of employees surveyed said they would rather work on-site than remotely.
Clearly the research shows employees, overall, prefer to work from home. Lastly, consider whether the flow of communications was effective and if managers were successful at supervising and coaching their team. Even if employers answer no to these last two questions, these problems can be easily improved through clear guidelines outlined in a remote work policy in the employee handbook and by providing training for staff and managers on how to effectively work remotely.
In addition, organizations should be open to the positives of a remote workforce such as saving on office space, as one of our clients is doing by having employees remain 100% remote and not renewing their current lease for office space. Still other organizations are shrinking their office size due to an increase in remote workers, both of which can be a huge savings for a company. Remote work is also a huge selling point for new hires. Millennials are currently the largest age group within the workforce and working remotely is a priority to them. Another positive to remote work during the pandemic is that it will help minimize the spread of Covid and promote the safety of your workers, thus protecting the company from litigation related to employees contracting Covid.
Employers can allow employees to work remotely part time or full time (remember for now that only 50% of offices full occupancy should be back in the office.) This may prompt the question- why return some employees when they all cannot return? You may also decide certain positions are remote (such as outside sales) while others should now be on-site (such as the Office Manager). Just remember that these decisions should be made with legal counsel and/ or HR professionals, and not run afoul of the EEOC.
There are instances when employers should not make employees return to on-site work during the pandemic. On May 7th the EEOC updated their guidance on an employer’s obligation for having interactive dialogue with employees to discuss reasonable accommodations under the Americans with Disability Act. During the pandemic, the EEOC urges employers to review certain medical conditions at high risk as per the list from the CDC such as severe obesity, diabetes, and severe asthma. The employer need only provide an accommodation if the employee requests it. Conversely, doing so without the employee requesting the accommodation may be discriminatory. If the employee requests an accommodation, working from home may be an option. Governor Cuomo has suggested that employers should allow workers over 65 years old to work from home, during the pandemic, if they request it under what he calls, “Matilda’s law”, which he named after his mother. Even younger workers with medically diagnosed anxiety may ask for an accommodation. Additional accommodations to teleworking may include:
Working in an office or in an area away from other employees
Working during off hours
Providing additional PPE
Eliminating non-essential duties that may put the employee in harms way.
Allowing employees to remain remote will be individual to the organization and each employee and all decisions should be made consistently, in a non-discriminatory manner and with the guidance of legal and /or HR professionals.