Legal Pitfalls Regarding Return to Workplace Plans

Shifts in working environments caused by the pandemic are beginning to result in new legal challenges. Some legal firms are beginning to offer guidance.  While it is always best to consult with your own legal counsel, the following advice might provide a starting point in discussions regarding return to the workplace policies and procedures.

One area of consideration is the precedent set by remote work during the pandemic when addressing employees seeking remote work as an accommodation under the Americans with Disabilities Act (ADA). Some attorneys are recommending that – to counter the argument that telework does not impose an undue hardship on employers – employers must support their position that onsite work is required in the future:

1. Send written notification to employees that a remote work structure is provided only in response to the pandemic and that the company recognizes that some essential functions of their employees’ responsibilities will not be performed while working remotely.
2. Review and revise job descriptions to ensure that onsite work is truly essential for those employees facing a mandatory return to the workplace.
3. Before employees return to onsite work, they should be notified in writing that the resumption of all essential job functions will be restored when upon returning.

In situations where employees have been required to telework, companies must address the question of whether employers must reimburse employees for expenses incurred while working at home. Attorneys note that that the Fair Labor Standards Act requires employers to reimburse expenses incurred if those expenses would result in compensation below the federal minimum wage.

Several states – including  California, Illinois, Iowa, Montana, New Hampshire and South Dakota – require employers to reimburse employees who are forced to work from home during the COVID-19 epidemic for their reasonable and necessary home office expenses, which may include a portion of the expenses associated with their cell phone or landline, home internet, personal computer or tablet, fax or copier machines, and teleconferencing software or hardware.  However, other home office expenses which are merely at the convenience of the employee are not reimbursable, such as higher-speed internet, computer monitors, ergonomic chairs, or printers.

Companies that require employees over the age of 65 to telework may be in violation of the Age Discrimination in Employment Act, as an older employee cannot be excluded from the workplace merely because the employee is statistically at a greater risk for serious illness than a younger employee. However, some state and local sick-leave laws may require an employer to reasonably accommodate an employee who requests an accommodation for COVID-19 reasons based on age.

It is anticipated that the issue that will most frequently result in a legal challenge is the handling of parents of school-age children whose schools do not reopen or who implement a hybrid model in which the child is onsite for certain days of each week.  Attorneys advise that the federal Families First Coronavirus Response Act [FFCRA] specifies that employers with fewer than 500 employees have two courses of accommodation related to COVID-19: emergency paid sick leave and expanded family and medical leave. An employee can use both types of accommodation for up to a total of 12 weeks of leave.

The FFCRA leave is not applicable if a school is open for in-person instruction but an employee voluntarily chooses the remote learning option for his or her child. 

The Gartner Group research firm cautions that “the return to the workplace is not just an operational challenge, it’s a human challenge.” Research conducted by Gartner indicates that 64% of HR executives are giving the employee experience a higher priority than they did before the COVID-19 pandemic.

Gartner suggests that companies avoid potential litigation by creating “employee journey maps” to identify and manage the process of returning to work and recommends including employees in a company’s decision-making about reopening. HR should gather data to understand the workforce’s comfort level, and actively monitor employee sentiment after return to workplace has been initiated. In addition, executives should be transparent about changes in health risks as the pandemic continues to unfold.  A lack of perceived safety can undermine employee confidence in any plans to return to work.