While many employers experimented with flexible schedules, remote work and better work life balance prior to COVID-19, the pandemic has changed the complexion of the modern workforce. Now, most employees, polled, prefer to work from home-at least part of the time. The expectations of employees have been re-shaped by their work experience during the pandemic. Many find it difficult to return to on-site work for a variety of reasons, including, a continuing concern of exposure to the virus, a simple preference to work from home, costs associated with a return to the workplace and pay scale. The continued desire for a flexible work environment presents a conundrum for Employers. Most businesses seek a return to work and pre-pandemic profitability. However, there are many factors to be reconciled:
- Is a return to on-site work appropriate and efficient?
- What job functions can be done from home or a remote site versus those that must be accomplished on-site?
- How have legitimate business needs changed during the last two years?
Remote and hybrid work are real factors for consideration in our current employment environment. Employers need to redefine their business narrative to substantiate their evolving policy and protocol and adjust to the demands of the new modern workforce. This is a complex shift for most employers, balancing business need against employment trends and legal exposure. It requires educated guidance and the collaboration of both internal professionals and outside expert legal counsel.
There are several key concerns for employers advancing out of the restrictions of COVID-19. Filling open positions and retaining critical talent continues to be an ongoing source of frustration for many employers. Employers must evaluate their current business needs and develop efficient strategies to optimize talent and minimize costs. Diversity, equity, and inclusion initiatives could suffer. Despite efforts dedicated to a vibrant DEI culture, many managers suggest that promotions will more likely fall to on-site employees. Employers must renew strategies to balance work flexibility and support underrepresented groups in recruitment and promotion. Turnover continues to be a problem. There is less attachment to the on-site employer and more opportunities for remote work offered by innovative competitors. Employers need to find new ways to connect remote employees to the on-site culture and infrastructure to entice and retain talent. To one degree or another, each employer must consider how to modify their business to a new “human-centric model” that promotes flexibility, connectedness, and leadership.
Existing laws and regulations add another layer of obstacles for employers forced to grapple with the changing work environment. State and Federal directives, initiated at the start of the pandemic in February/March of 2020, provided cover for both employees and employers. The unique and all-encompassing nature of COVID-19 required an equal response that sent most of the workforce home and directed employers to keep their employees safe and limit work functions to the confines of government defined restrictions. Rights and duties assigned to employers by laws such as the Fair Labor Standards Act, The Americans with Disabilities Act, Workers’ Compensation, OSHA, and ERISA existed before the pandemic, but were modified or suspended by directives issued to survive the pandemic. Those laws and the corresponding responsibility and liability associated with their provisions still exist – but the directives that provided ground cover for employer compliance during the pandemic do not. Employers must rely on legal counsel to facilitate the change in narrative without compromise to position or legal defenses. Employees demand flexibility. They seek “accommodations” like those provided during the pandemic. Most accommodations provided during the pandemic are not applicable now. Employers and employees must comply with the state and federal laws that govern the workplace. Employers need to develop a narrative to define their business needs moving from 2022 to the foreseeable future, that provides for some adjustment and flexibility but creates an objective pathway to efficiency, safety, and profitability. One real change to the landscape is the recognition and re-invigoration of existing laws. Employers must work with trusted counsel to marry vision with legal compliance.
To appropriately navigate this tumultuous environment and avoid liability presented by the almost inescapable legal minefield, employers must solidify their new business narrative. Document meetings wherein the new business strategy for growth, development, and return to work are considered and adopted. Be proactive. Before confronting the demands of a returning workforce understand and document legitimate business needs. Review job descriptions to renew your determination of essential functions as required by the updated business strategy. Work with legal counsel, Human Resources, and Operations departments to understand the requirements and impact of remote or hybrid work.
Refinement of business practices and the revision of business needs, policy and job descriptions is critical now. This article is the first in a series dedicated to the employer address of this dilemma. In subsequent offerings, we will systematically explain the rights and duties borne of the provisions of competing employment laws and statutes, including but not limited to, those listed above. We will provide guidance for proper documentation, development of a new business narrative and strategy, and refinement of essential functions and qualifications of a well-written job description. We will endeavor to provide the foundational tools necessary to progress your business and your workforce through the evolution of the new order of the remote and hybrid employment environment.
In the interim, please contact our Employment Law Group at 1-888-488-2638 or email at EmploymentLaw@c-wlaw.com. It is imperative that our employer clients understand the shifting work environment and its impact on their business and legal liability.
The information in this article is provided for general informational purposes only and may not reflect the current law in your jurisdiction. By reading this article, you understand that there is no attorney-client relationship between you and Cipriani & Werner, P.C. or any of our attorneys. No information contained in this article should be construed as legal advice from Cipriani & Werner, P.C. or the individual authors.