Labor Law: Return to the Office and COVID-19 | Local business news

By KAREN MICHAEL Special Correspondent

Employees working for the Commonwealth of Virginia must return to the office on July 5 unless they receive permission from the agency head to telecommute one day a week. For additional remote work days, employees must seek approval beyond the agency manager within Gov. Youngkin’s administration.

The move by organizations to require employees to return to the office after the pandemic is gaining momentum across the country. For example, Elon Musk announced to Tesla employees that they would have to return to the office 40 hours a week full-time, and reportedly told employees that if they didn’t show up he would assume they would quit.

Two years and three months into the pandemic, it’s time to bring employees back into the office if they’ve been teleworking due to the pandemic.

I give some advice on how you can do this:

  • Be clear about expectations. While Tesla’s policies appear rigid, expectations are clear.
  • Be prepared for employees who don’t want to return to the office. There are many reasons why an employee refuses to return to work. Some reasons include COVID-19 fears, childcare, elder care, pet care, commuting, and the convenience of working from home. Employers must anticipate all of these objections and be fully prepared to address them.
  • Employers should evaluate the reason “COVID” on a case-by-case basis. Admittedly, some employees will use COVID as an excuse to stay home when otherwise they go about their normal lives outside of work. At this point in the pandemic, for an employee to fear catching COVID if they come to the workplace is not generally sufficient for an employee to be entitled to an exemption.
  • Employers should follow the Americans with Disabilities Act. Some employees have a disability that prevents the employee from interacting with others. For example, this could be an employee who is undergoing active cancer treatment. Upon receiving such a request, employers should participate in the discussion and obtain medical documentation on the need for placement. Just because an employee requests teleworking does not mean the employee is entitled to it. Even if an employee has previously been in a shelter, the employer is entitled to updated medical documentation justifying the need for remote work. Most employees, including those with disabilities who may be immunocompromised or have asthma, are likely to be able to return to work safely if risk reduction measures such as mask wearing and social distancing are in place. The employer may consider alternatives to remote work as long as they are effective. If personal return is now an essential job function, then the employee is not qualified for the position and may be promoted to a vacancy or face disciplinary action and even termination.
  • Create a solid telecommuting agreement. Before the pandemic, employees who occasionally or always worked remotely had to certify that they did not engage in other activities such as childcare or elderly care during working hours. While there may be occasional needs in a household, remote work should not be a substitute for childcare and most telecommuting agreements make it clear that an employee working remotely with young children must have separate childcare. Post COVID, these restrictions are likely to be relaxed, but employees who are actively engaged in childcare or elder care while on the job are likely to be distracted and not in a fully engaged work environment. Employers have tolerated this in the unique circumstances of the pandemic, but finding a balance will be important.

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In general, flexibility will be key to ensure employees feel supported in their work-life balance. Many employers are considering a hybrid model.

Studies reveal the burnout of living essentially at work. A Work Human study has shown that 50% of employees hired during the pandemic (and largely onboarded remotely) plan to look for a new job in the next 12 months. Remote workers struggle to connect or engage with company culture, and this is problematic for organizations trying to build trust and collaboration. For this reason, a hybrid model might be the best approach.

Karen Michael is an attorney and President of Richmond-based Karen Michael PLC and the author of Stay Hired. She can be reached at [email protected]

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