Can employers mandate in-person work?
While the pandemic had companies shifting to remote work almost overnight, the task of transitioning remote employees back to their cubicles is fraught with major challenges. Companies need to decide whether remote or in-person is the best way forward. For those that know in-person is the answer, you can bet some staff won’t be so keen on coming back to the office, So, can employers mandate that workers give up remote and work in-person?
Yes. Even if workers want to work from home, they don’t control that decision. The company does, for the most part. Workers have a very limited right under the law to refuse work even if they consider the job to be hazardous to their health.
There is no law that allows workers to stay home with job protection or to collect pay simply because they’re delivering just fine from the safety of their couch or they fear being exposed to the virus without any sort of underlying health condition that increases vulnerability to COVID-19.
Aim for a slow and reasoned approach
With the vaccine rollout slow and school re-openings disjointed, expect getting back to business as usual to be gradual and bumpy. Aim for a slow and reasoned approach to whom should be asked to return to the office and when, recommends Amy E. Feldman, a lawyer specializing in employment issues at The Judge Group, Inc.
“For employers who want to throw open the doors and herd everyone back into the office, it’s a good time to be reminded that while that goal seems close, it is not wise to snatch defeat from the jaws of success by requiring people back before it is safe to do so,” Feldman says.
Employers have a right to set policies on when employees must return to the office, and it is up to an employer to decide how best to run the office. Even for jobs in which an employee can perform services remotely—unlike people who stock shelves, are cashiers, bus drivers, or do other jobs that simply must be performed at the worksite—it still remains the employer’s decision when to require employees to return.
Provide accommodations for high-risk employees
That said, employers do not have completely free reign when telling workers to return, Feldman says. They must abide at all times with the Americans With Disabilities Act, which requires that covered employers provide reasonable accommodations to employees whose health condition prevents them from coming into the office.
In addition, the Family and Medical Leave Act says that covered employers must allow up to 12 weeks of unpaid leave to eligible employees to deal with the family or their own medical needs. There are also state laws on paid sick time that would necessitate pay and allow absences under certain circumstances.
Resistance is to be expected: A Gallup poll found that two-thirds of employees who have worked remotely during the pandemic would like to continue to do so. And a survey by Mercer, an HR consulting firm, reports that 94% of employers said productivity was the same or higher than before the pandemic, even with staff working from home.
Expect resistance from some employees
If you are a manager proposing to return your workforce to their workspaces, you would do well to plan carefully and take your time. “It is a delicate time, and one for employees and employers alike to assess what is working for them and what isn’t.”
Challenges will arise in navigating an in-person return, says Feldman, including when employees who think they can do their jobs from home face resistance from bosses who say that while the work may be getting done, it required a redistribution of job duties. That leaves those who have returned to the office unfairly forced to pick up the slack for workers who had to turn over some duties while they remained at home.
“In that situation, companies are allowed to require workers to come back to the office, so long as they provide accommodations to those whose medical conditions or the medical or care requirements of their family members make it unsafe to do so,” she says.
Listen to employee concerns
Companies that consider the needs of the business and employees position themselves for a smoother transition. Teams work best when every person considers not just his own position but the position of everyone on the team. Empathy and listening drive connection, collaboration and performance.
“Employers who listen to the concerns and needs of their employees and accept feedback about how they can contribute remotely or in-person and make decisions with that in mind, together with employees who think through the company’s and their coworkers’ needs and expectations when performing their job, will be able to create an environment in which everyone feels valued individually and as a part of the team,” she adds.
*Amy E. Feldman is the General Counsel of the Judge Group, Inc., an international business solutions company, and she is also a nationally-syndicated legal correspondent with experience in employment law and sexual harassment defense.