By Allen Smith, J.D.May 18, 2021
As employers plan for their return to the workplace, gradual strategies can help ease employees back onsite. Make sure to communicate the reasons why the return to the office is important and how you are keeping workers safe.
And be ready for employees who don't want to come back in. "Be prepared for pushback and respond appropriately when the employee's reason is medical and/or religious-based," said Carrie Hoffman, an attorney with Foley & Lardner in Dallas.
As various jurisdictions' capacity limits on worksites are eased—due to rising vaccination rates and falling COVID-19 cases—employers can take a stricter stance.
"Employers do have the right to require in-office participation, and employees who draw a line in the sand may find themselves off the beach," said Deena Merlen, an attorney with Reavis Page Jump in New York City and Stamford, Conn. "Especially in any service industry or creative field, employers may simply value in-person exchange for their business as well as general morale, and that is their right."
Different cities and states have had different approaches to reopening, with many implementing phased-in reopening plans that depend on the type of business or employer. Essential businesses may have never closed, Merlen noted. Some employers are asking workers to report in person for two or three days a week, starting on a future date with reasonable advance notice, then calling for a full return to office when staff have been fully vaccinated, she said. Different Strategies Merlen suggested employers consider a range of strategies for helping employees return to the workplace.
"For offices with new capacity constraints or insufficient space to allow for proper social distancing, staggered work shifts may make sense," she said. "Employees can be on a schedule in which some come in on certain days or for certain hours while others work at home, on a rotating basis."
For example, individuals assigned to Team A would return to the office every Monday, Wednesday and alternating Fridays, with Team B coming into the office on Tuesday, Thursday and alternating Fridays, noted Ian Carleton Schaefer, an attorney with Loeb & Loeb in New York City.
"Other employers are telling employees they may choose their own days or weeks to come into the office, subject to capacity restrictions, and make reservations to stay in compliance," he said.
New York state had restricted the capacity of office spaces to 50 percent, but effective May 15, offices could increase their capacity to 75 percent, said LaKeisha Caton, an attorney with Pryor Cashman in New York City. Chicago's 50 percent limitations on office capacity are slated to rise to 60 percent.
Another solution can be checkerboard seating, which can be helpful for employers with cubicle seating or open floor plans. Checkerboard seating leaves every other seat or cubicle empty, mimicking a checkerboard, Merlen said.
For many employers and employees, worksite re-entry is going to be a gradual, evolving process, predicted Robert Duston, an attorney with Saul Ewing Arnstein & Lehr in the Washington, D.C., area.
"Offices won't feel normal until COVID-19 masks, social distancing and other safety guidelines are lifted," he said. "If you can't mingle in the kitchen, sit together at a conference table, use your small meeting rooms, you won't have the social feel."
The U.S. Centers for Disease Control and Prevention recently released guidance lifting mask and social distancing restrictions in many settings for those who have been fully vaccinated. Nonetheless, some states and localities still have mask and social distancing mandates and some employers have them. "Start with the social aspects," he recommended. "Start bringing in teams and departments into the office for face-to-face meetings instead of remote. … Or have days for employees to come back to see the new IT set-ups … or demonstrate how they can seamlessly move between home and the office," he added.
Vaccinations "As vaccination increases and case rates, hospitalizations and deaths from COVID-19 continue to fall, many businesses are eager to return to their traditional office environment," said Hugh Murray, an attorney with McCarter & English in Hartford, Conn.
Many employers may be moving toward vaccine mandates by the fall, especially after the vaccines receive final Food and Drug Administration approval, Duston said. "But that will leave pockets of vaccine hesitancy or refusal, and some of those people are going to be managers, rainmakers and key employees."
A significant percentage of the workforce is either fearful of the vaccine or opposed for personal or health reasons, he noted.
Equity Issues Many employees like the flexibility of working from home and are not going to want to return to the office full time, Duston said.
Why? "Short commutes, relaxed dress, more flexible hours, less stress, COVID-19 puppies. Plus, a large group of people who like to work alone but were not able to do so in the past," he said. "This group is going to want or demand hybrid options."
This will raise equity issues, Duston cautioned, if senior managers work from home a number of days or when they want, but lower-level staff are required to come in. That could result in "a big culture issue for many employers," he said.
"Companies must be careful about allowing some, but not all, employees to work remotely, as an uneven application could give rise to discrimination claims," added Randi May, an attorney with Hoguet Newman Regal & Kenney in New York City.
Balancing Act "Employees should appreciate that, in the end, it is the employer's viewpoint about its own business needs that will be the final word in the conversation," Merlen noted.
That said, "employers must balance the popularity of remote work, impact on morale and needs of the business when deciding how to implement their return-to-office plan," said Tory Summey, an attorney with Parker Poe in Charlotte, N.C.
Moreover, safety concerns remain a key consideration.
Until Jan. 1, 2023, California's Division of Occupational Safety and Health can issue orders to shut down an entire worksite or a specific worksite area that exposes employees to an imminent hazard related to COVID-19, said Jennifer Huelskamp, an attorney with Freeborn in Chicago.
Employers in other states are waiting for federal guidance from the Occupational Safety and Health Administration.
