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To Be or Not to Be at the Office?

Employers attempting to go back to the office are faced with various legal hurdles

In a survey conducted in May, WorldatWork asked employers when they expected to resume “normal” operations. The “Back to Work Playbook Study” found that most organizations (67%) anticipated this return to normal office operations to occur by the end of the summer.


However, as the midway mark of August approaches, those expectations are looking increasingly naïve. While many companies never had a choice — particularly those on the front lines — organizations that are able to operate remotely are finding a return to the workplace is an arduous task that could lead to an unpleasant employee experience.

“We’re looking at where employees would come through the front. They may need a temperature scan, maybe a COVID test and potentially have to wait in line. They get to the office and they have to wear a mask and socially distance,” said Kumar Kymal, managing director, global head of compensation and benefits at Bank of New York Mellon. “The cafeteria is unlikely to be open, because it will transmit the virus. All of these things in combination creates a really terrible employee experience and we don’t know for sure when we’re going to have a vaccine.” 

Read: “Most Organizations Plan to Return to Work by End of Summer

While Kymal, who was speaking at WorldatWork’s “Total Resilience Virtual Conference & Exhibition” in July, underscored the employee experience aspect of returning to the office, organizations also face legal hurdles if they decide to return.

Assuming the company operates in a state where it’s allowed to bring back employees to the office that could otherwise work remote, Mike Delarco, head of Hogan Lovell’s labor and employment practice in the Americas, said employers should consider a few practices to limit liability. One practice, Delarco said, is providing written guidance to employees about safety protocols in returning to the office. A second practice, if your organization is not requiring anyone to return to the office, is getting a written acknowledgement from employees who choose to come to the office.

Delarco said the biggest liability for employers lies with employees who ask for an accommodation to not come back into the office due to a medical condition or employees who refuse to come into the office because they are not satisfied with the safety protocols in place.

“If an employer takes an action against the employee based on the complaint, that could be a retaliation claim and it’s also going to depend on where the employer’s located as to whether that is protected activity under a particular local or state statute,” Delarco said.

For larger companies that operate in multiple states or countries, the prospect of returning to the office is particularly daunting. Delarco said the best approach for these companies is to identify which jurisdiction they operate in has the most restrictive measures in place and apply that across the board for all their employees.

Read: “Distancing Together: Employees and Employers on the Path Back to Normal

“That is the practical way to stay on top of the requirement and knowing that you are taking the extra step to be compliant,” he said.

Perhaps the most important thing a company can do if they do decide to return to the office is train their managers on how to handle the various compliance situations that could arise, such as employees refusing to follow safety protocols.

“They really need to be trained on dealing with employees who may not want to come into the office who may be entitled to some kind of leave of absence,” Delarco said. “It’s very important for managers to spot accommodation issues, so they can move it over to the HR department so they can handle it. If managers are not trained to spot an accommodation issue, there can be decisions made that could be in violation of the law and they may be doing that unknowingly.”

Ultimately, Delarco acknowledged that the best way a company can mitigate risk in this virus-laden reality is by extending remote work. However, for those companies unable to sustain that setup indefinitely, proper compliance procedures are paramount.

About the Author

Brett Christie Bio Image

Brett Christie is the managing editor of Workspan Daily.

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