Return to the office?

For certain industries – manufacturing, food production, hospitality and health care, to name just a few – returning to work after extended COVID-19 seclusion hasn’t been a significant question. Those jobs, and many others that require in-person functions, simply can’t be performed in isolation. But for those in office and professional fields, the issue is becoming increasingly relevant as the pressure to return to some form of post-pandemic normalcy rises and employers and employees alike begin envisioning how their jobs will be performed when vaccinations become prevalent, with rising desires for teamwork, office infrastructure and group productivity. So what does a return to work look like? There’s no single answer or prescribed process, but a few considerations will become critical as both employers and employees navigate a return-to-work journey rife with potential detours. “From an employer’s perspective, you really have to think about it based on what your workforce is going to be doing,” said Erin Nathan, an employment law attorney at Simmons Perrine Moyer Bergman PLC, with offices in Cedar Rapids and Coralville. “Can you safely bring people back to work? What additional supports do you need to put in place, whether those be additional barricades or policies regarding masking and expectations on hygiene? “You also want to think about what you’re going to do if you do end up with someone who has COVID, or a COVID outbreak,” Ms. Nathan continued. “How do you communicate all that effectively to your employees, to make them feel safe in returning, if we’re going to bring folks back? Are we going to bring everybody back all at the same time, or are we going to stagger returns? Are they just going to work from home? I know a lot of my clients have been thinking about those things since April or May, how to provide a safe working environment for their employees. In many cases, it really depends on what your workers are doing.” For a number of employers, decisions on bringing workers back to the office can be based on a number of non-health factors. According to a Remote Work Survey released in January by PwC (formerly known as PricewaterhouseCoopers), a majority of employers – 52% – believed in December 2020 that their company’s remote work productivity had improved since the onset of COVID-19, as compared to just 34% who felt productivity had improved as of June 2020. The same survey indicated that executives expect to return to the office faster than employees. By July, 75% of executives anticipate at least half of the office workforce will be back on-site, and over 60% of executives expect to raise spending on virtual collaboration tools and manager training. Half plan to invest more in areas that support hybrid working models, including hoteling apps (50%) and communal space in the office (48%). And for many, the decision will hinge, as many business decisions do, on the bottom line. “If an employer is considering whether or not to bring people back to work, the first thing they need to consider is whether it be done so safely,” said Samantha Rogers, senior human resources manager with the Skywalk Group in Cedar Rapids. “In many cases, the answer is yes. But another question employers are asking themselves – is it necessary? I have some clients who are realizing wasted space at the office could be turned into a permanent, or even temporary, hybrid model of working from home that might save them on office space, supplies and administrative fees. So some are taking this opportunity to say, I could bring people back to the office safely, but do I need to, particularly in the white collar administrative or professional services industry?” For workers, the issues can vary even more widely. First, do employees want to return to an in-person office setting? A recent survey from the workplace platform Envoy found employee attitudes about work have changed, and in many cases, employees don’t want to return to the office on a regular basis. Nearly half of survey respondents (48%) said they would like to keep working remotely, at least part of the time. That desire for a hybrid work arrangement is popular even in industries that usually require on-site work, including 61% of healthcare workers, 41% of construction/manufacturing workers and 34% of retail and hospitality workers. And when employees say they want to keep working from home, they mean it. According to the same survey, 41% of employees would be willing to take a job with a lower salary in exchange for a hybrid work model, and 47% say they would likely leave their job if it didn’t offer a hybrid work model once the pandemic ends. They are, however, willing to return to the office based on what they need to get done for work (39%), see their boss (18%) and catch up with their work friends (23%). Many employee concerns are fueled by health and safety considerations. The Envoy survey indicated two-thirds of employees are worried about health issues in the workplace, and those concerns are even higher among people of color (78%) and members of Gen Z, those age 25 and under (78%). A majority of employees (62%) said they would feel safer if employers mandated workers get a COVID-19 vaccine before being allowed to return to the office. But what if an employer mandates that all, or a certain portion, of the workforce return to the office? Do employees have any discretion in following that edict, based on either personal or practical considerations? The answer, like so many others in this realm is: It depends. “Employees always reserve the right to express any concerns they have,” Ms. Rogers said. “If someone simply doesn’t feel comfortable (returning), even though there isn’t any religious exemption or underlying health conditions, employers should create an atmosphere where they are welcoming discussions and questions, and employers at that point can decide how to address those concerns based on that culture. “Some employers may put together a program where it’s voluntary (to return), and if you’re comfortable, you can come into the office, if you are not, you can stay home,” she continued. “Some employers may decide if your productivity is below a certain standard, we need you to report to work so we can begin a retraining or performance improvement process. But for the rest, it’s a gray area. If someone comes forward and says, ‘I have this health condition, or I have this concern,’ then the human resources individual or the organization can go through an interactive process to see if there’s a reasonable accommodation that can be made. Every employer should be taking strides towards that goal. Nobody should be retaliated against by bringing any concerns forth.” Any decision regarding employees returning to a common workplace should begin with a policy that takes all federal policies into consideration, including both pre- and post-pandemic regulations, Ms. Nathan said. “First, we have the Families First Coronavirus Act, the FFCRA, which has now been extended by the American Rescue Plan, and that allows an employer to allow a permissive extension (of leave),” she said. “There are a variety of reasons why people could use that type of leave for very specific situations related to COVID, where they would not be required to return to work within that leave period. Number two, does the person have an FMLA qualifying event related to COVID? That could be someone who’s a COVID long hauler and is still suffering, so they would have to go through that normal FMLA process, assuming the employer offers FMLA. And then third, is this a person with a disability, where a reasonable accommodation would be either work from home, or unpaid leave? “Those are sort of the three reasons why I could see someone who legally would not be required to return to work,” she added. “And then there’s a fourth overall issue, not really a legal one but a practical one, and that’s morale. Bringing people back versus not, how does that impact morale? And that’s a different equation for different employers.” The Centers for Disease Control (CDC) website offers a wealth of guidance on return-to-work considerations (www.cdc.gov/coronavirus/2019-ncov/daily-life-coping/returning-to-work.html), and in Ms. Rogers’ view, that should be the starting point for any policy implementation. “At this time, we’re recommending until there’s more research or until the CDC guidelines are changed, we should stick with their prevention recommendations,” she said. “When in doubt, we would advise to default to the CDC guidelines, because the CDC are the ones who are making research-based decisions. And they have trials, they’re making decisions across the whole United States. So it’s much more of a broad precautionary measure that would apply equally to everyone.” Once that policy is implemented, make sure it’s fully communicated and, most critically, fully documented, Ms. Rogers noted. “Many companies say they have guidelines and policies when it comes to COVID prevention,” Ms. Rogers said. “But in many cases, we’re seeing employers, particularly small employers, that say they have policies and guidelines, but they may not be written down. Or maybe they are informal, such as an email update that goes out here and there, rather than a formal policy, something you can refer employees back to if they have questions. So one of the first steps should be, let’s make sure we have the policies decided upon and then documented.” Yet another key question: Can an employer require employees to be vaccinated before returning to the workplace, and is it mandatory for workers to divulge their vaccination status? “Employers for the most part can mandate whether or not employees are coming to work, but requiring vaccines is much more difficult,” Ms. Rogers said. “One of the reasons that people who are even on the fence about requiring vaccines is because of the paperwork and enforcement. If I, as an employer, were going to require vaccines, now I need to be responsible for proof of vaccination and safeguarding the paperwork that I’m requiring. I need to be prepared to follow through with discipline if people will not provide proof of vaccination. I need to be prepared to properly document the accommodation process. “And then on top of that, it complicates the recruiting process,” she added. “Let’s say I find a perfect job candidate. If you get to the stage where you make an offer, you cannot ask whether or not they’ve been vaccinated until you get to that step. At that point, you can start to ask medical questions within limits. So then you have to follow the guidelines of GINA (the Genetic Information Nondiscrimination Act) when it comes to the types of medical information you can ask. So with a few of these hoops to jump through, if you don’t have to require vaccinations because you’re not a medical facility, many employers are choosing not to enforce that. On the employee side, I don’t know of any legal right not to answer the vaccination question, as it elicits information to protect the health and safety of the employee’s co-workers. The EEOC has stated that asking about vaccine status alone is not a medical inquiry. If an employee refuses to answer, a conversation should be had with the employee about the reason for the refusal.” As the post-pandemic landscape evolves, more issues will inevitably surface to change the rules, Ms. Nathan said. “I feel like a lot of a lot of employers did a lot of really good work early on in creating safe and effective workplaces,” she said. “Now, it’s just about being diligent with that the work that they’ve already done, which is hard for all of us. It’s been a year, and it’s hard for all of us to continue to be diligent, have those good structures in place and continue to be open with communication, because I never would have predicted this or thought, ‘we need to create policies for my clients on this.’ Things just continue to develop. “Continue to keep the lines of communication open with your employees,” she added. “Everyone is in this together. I think that’s really important. A lot of my clients have been able to pull together as a stronger unit because of this. It’s a new world, right? Because some jobs you have to do face to face, and some you don’t. I think each company needs to make that determination. It’s a little bit of a jigsaw puzzle, but I would say, don’t rush into any decision. Try to give it some forethought.”