Eighteen months into the COVID-19 pandemic and with vaccination rates increasing, and governmental and travel restrictions considerably loosened, many employers have returned employees to the workplace, or are contemplating doing so. And those who have already done so or continued working in the workplace during the pandemic as an essential business are making ongoing judgments about how to keep their employees safe. All employers must ask themselves certain basic questions: Can my employees return to the workplace? Should my employees return to the workplace? What are my risks and how can I minimize those risks in the workplace? Depending on the answers, other related questions will arise.

The first question is whether local or state laws or rules bar an employer from bringing employees back to the workplace? That may seem somewhat outdated given that nearly all workplaces that were ordered closed in 2020 are now allowed to open, but some limits remain in some states on holding large, indoor events.

Should my employees return to the workplace?

Assuming an employer is not legally barred from bringing employees back to the workplace, the next (and more difficult) question is whether it is prudent to do so. 

The company best knows its business, and return-to-work decisions will depend on a number of factors, including the physical layout of the facility(ies), the type of industry involved, the type of workplace, the degree of exposure to the public, and similar parameters. If a business has been operating reasonably well remotely until now, that may weigh in favor of a slower approach to re-opening.

The assessment of whether the employer should bring employees back will naturally lead into questions of how to do so safely. Of course, employers already have an obligation to provide a safe workplace environment under OSHA’s General Duty Clause, which mandates that employers provide a safe and healthful workplace that is free from recognized hazards that can cause serious physical harm or death. (Indeed, while OSHA has not yet issued a specific standard for COVID-19 (outside of the healthcare context, see here), a number of states have enacted such standards. OSHA has also issued COVID-19 guidance). There are also 22 states or territories who have OSHA approved state plans covering both private and public workers that may have to be considered. See here.

As reflected in both the CDC and OSHA guidance, there are several proven and important lines of defense, namely: (1) encourage or even require that employees who are in the workplace be vaccinated; (2) Keep sick employees out of the workplace; (3) require adequate face coverings and safe behaviors; (4) upgrade HVAC filtration and adequate ventilation; (5) require physical, spatial distancing of employees (including having some employees continue working remotely); and (6) provide temporal distancing (i.e. staggered shifts or staffing, including by having hybrid workers in the office at different times).

Tips:

• Require or at least create incentives for workers to be vaccinated, or failing that, to at least undergo regular COVID testing.
• Employers should conduct an individualized risk assessment of the workplace, identifying the potential hazards associated with the ingress and egress of the facility, the number and size of work shifts, size and layout of working areas in comparison to number of employees who will be present, width of hallways, size of common areas including lunch rooms and the number and size of bathrooms, deciding how likely an employee could contract COVID or that the disease could spread, determining the action that should be taken to eliminate or lessen the hazard or control the risk, and tasking a group or individual to oversee action plans.
• Consider all applicable guidance, including but not limited to the guidance documents prepared by the Centers for Disease Control (CDC) and the federal and state Occupational Safety and Health Administrations (OSHA) for work environments. See here and here). Check for relevant guidance for particular work environments. See, e.g. here).
• Don’t forget to consider guidance from other governmental agencies, such as the Equal Employment Opportunity Commission (EEOC). See, e.g. here; see also here.

If the company returns to work either in part or in full and a COVID-19 resurgence occurs (as is happening currently due to the Delta variant), revisit the situation immediately and determine if additional measures, including a temporary office closure, should transpire. Follow governmental action including new closures or “pauses.”

The company best knows its business, and return-to-work decisions will depend on a number of factors, including legal considerations, medical information, the industry involved, and the type of workplace. Involve key business leaders and stakeholders in the decision-making, and identify a team of professionals from various disciplines, including lawyers, human resources people, medical advisors, risk managers, occupational safety and health consultants, and industrial hygienists, in the return-to-work decisions.

Tips:

• Use members of the team, as appropriate, to: develop plans and protocol for resuming work; monitor compliance; assess effectiveness; and make changes as necessary.
• Consider whether public relations and media professionals should be involved.
• With any resurgence of COVID-19, anticipate issues and be prepared to react. Be sure to involve the team, consulting appropriate professionals and considering new applicable laws, regulations, orders, and guidance to determine whether additional steps, including a temporary closure, are warranted.

One of the ways for an employer to bring employees back to the work place safely is to require physical and spatial distancing of employees. However, it is important to know that while maintaining at least six feet of distance is recommended, staying six feet apart does not guarantee safety, especially in enclosed or poorly ventilated spaces. In fact, OSHA guidance cautions that “Particles containing the virus can travel more than 6 feet, especially indoors and in dry conditions (relative humidity below 40%),….” See here.

With that very important proviso, physical distancing means that an employer should study floor plans and the specific needs of the workers to use the particular space, identify whether the workspace needs to be reconfigured in any way, and take appropriate measures to do so. Employers should also remove or block access to furniture/areas as necessary to enhance physical distancing; reconfigure open workspaces or limit access (e.g. decide that every other cubicle must remain unoccupied or change the configuration so that employees do not face each other); and consider seeking the advice of appropriate professionals (e.g. an industrial design consultant or architect).

Tips:

• Consider modifications to the workspace, such as partitions and removing seats. Workers should be at least six feet apart, and not working directly across from each other (again bearing in mind that updated guidance is clear that six feet of distance does not guarantee safety, and is only one measure among many).
• Barriers are of limited utility, and are not a replacement for face coverings and physical distancing. When barriers must be used because physical distancing is impossible, barriers should be a solid, impermeable material like plastic or acrylic that can be easily cleaned and replaced, and should block face-to-face airflow, and should be fixed in place (not flapping or moving out of position when not in use).
• Consider industry-specific requirements or best practices.
• Consider marking off floor-space. Consider limiting access to rooms (e.g. two to a conference room, one to a restroom, etc.). Depending on the space at issue, take other measures as appropriate to achieve physical distancing where possible.
• Ascertain how best to modify the workspace and implement appropriate protections where physical distancing is not possible.
• Discourage lingering and socializing in close proximity.
• Encourage virtual meetings as opposed to in-person meetings.
• Consider whether to use floor wardens.
• Use appropriate signage.
• Know and examine the rules of the building owner or manager (e.g. limitations on elevator use).

Physical distancing may be enhanced by temporal considerations, such as: (a) staggering start and end times; (b) employing shifts even if the company has not previously utilized shifts; and (c) using flexible schedules and/or hybrid work arrangement, as discussed in more detail in the hybrid working section below.

Tips:

• Determine whether the company will permit non-scheduled or after-hours work access.
• Consider one-way access in the hallways; limit times that an employee may occupy any particular space.
• Stagger break times, arrival, and departure times.

As stated above in determining whether employees can return to the workplace safely, there are several proven and important lines of defense, including requiring personal protective equipment and safe behaviors; and upgrading HVAC filtration and adequate ventilation.

Personal Protective Equipment and safe behaviors

CDC and OSHA guidance continue to recommend (in addition to getting a vaccine): (a) wear a well-fitting mask over the nose and mouth, secured under the chin; (b) stay 6 feet away from others; (c) avoid crowds and poorly ventilated spaces; (d) wash hands often, for at least 20 seconds; (e) cover coughs and sneezes; (f) clean and disinfect frequently-touched surfaces; and (g) monitor health daily. See here. Employers should make these recommendations company policy, and then educate and train employees to follow these crucial safety measures.

The CDC has helpful guidance on what types of face coverings are best, and employers should consider providing or encouraging the use of better types, or at least train their employees on what types of face coverings work best, and on correct use. See here and here.

HVAC filtration and ventilation

Both the CDC and OSHA strongly recommend improving ventilation to combat COVID-19. Employers should consult or hire HVAC specialists to comply with this guidance, including by making adjustments such as:

• Increase outdoor air ventilation (using caution in highly polluted areas).
• Ensure ventilation systems operate properly and provide acceptable indoor air quality for the current occupancy level for each space.
• Increase airflow to occupied spaces when possible.
• Turn off any demand-controlled ventilation (DCV) controls that reduce air supply based on occupancy or temperature during occupied hours. In homes and buildings where the HVAC fan operation can be controlled at the thermostat, set the fan to the “on” position instead of “auto,” which will operate the fan continuously, even when heating or air-conditioning is not required.
• Improve central air filtration by increasing air filtration to as high as possible without significantly reducing design airflow, inspect filter housing and racks to ensure appropriate filter fit and check for ways to minimize filter bypass, and check filters to ensure they are within their service life and appropriately installed.  The CDC recommends following the guidance of the American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE).  ASHRAE’s guidance is to use filters with a Minimum Efficiency Reporting Value (MERV) of 13 or higher if possible to capture airborne viruses.
• Consider portable high-efficiency particulate air (HEPA) fan/filtration systems to help enhance air cleaning, particularly in high risk areas frequented by people with a higher likelihood of either having COVID or an increased risk of contracting COVID.
• Improve air flow by evaluating and if necessary repositioning supply louvers, exhaust air grilles, and damper settings.  See the CDC’s FAQ on Directional Airflow.
• Consider using ultraviolet germicidal irradiation (UVGI), including either in-duct UVGI and/or Upper-Room UVGI as a supplement to help inactivate SARS-CoV-2, especially if options for increasing room ventilation are limited. See here,  and here.
• In non-residential settings, consider running the HVAC system at maximum outside airflow for two hours before and after the building is occupied.

Surface cleaning and disinfection

For regular workplaces (not healthcare settings or others with specific requirements), the CDC recommends daily cleaning.  In addition, the CDC recommends more frequent cleaning and possibly disinfection in shared spaces and high traffic areas, or under certain conditions, including:

• High transmission of COVID-19 in the community;
• Low vaccination rates in the community;
• Infrequent use of other prevention measures, like mask use by unvaccinated person and hand hygiene; or
• The space is occupied by at-risk individuals. See here.

Note that the CDC distinguishes between routine cleaning (using soap or detergents), versus disinfecting, which requires use of U.S. Environmental Agency List N disinfectants, which kill germs that regular cleaning does not.

If someone who is suspected or confirmed to have COVID-10 has been inside a facility within the last 24 hours, OSHA recommends following CDC cleaning and disinfection recommendations, as well as OSHA’s own mandatory standards for hazard conditions and PPE needed to exposure to cleaning materials. See here.

In addition to requiring employees to get vaccinated (which may soon be required for many employers, and is otherwise recommended under OSHA and CDC guidance, and is allowed under EEOC guidance, see below), employers can take several measure to reduce the risk that infected employees will enter the workplace.

Tips:

• Determine the protocol to be used for implementing any screening procedures and what to do with the information obtained, including what actions will be taken if the information is of concern and whether the information will be retained or just used for the day.
• Use and enforce a daily standard questionnaire or personal health review (e.g. do you have symptoms, have you been exposed to people with symptoms or COVID-19, have you traveled and if so, where, etc.).
• Require employees who are positive for COVID-19 or exhibiting symptoms to remain out of the workplace for the requisite period as recommended by OSHA, the CDC and local authorities. OSHA recommends removing from the workplace everyone who is infected, or is experiencing COVID-19 symptoms, or is not fully vaccinated and has had close contact with someone infected with COVID-19.  In the latter instance, they should not be re-admitted until they test negative for COVID-19 if symptoms develop, and again five days after the contact.  Fully vaccinated people who have had close contact should get tested for COVID-19 3-5 days after exposure, and be required to wear face coverings for 14 days after their contact unless they test negative for COVID-19. See here.
• Change the culture about taking sick leave.  While there has long been a spirited debate about whether a workplace culture that incentivizes employees to work sick is actually counter-productive, COVID-19 has arguably tipped the scales in favor of maintaining a culture that encourages employees to take sick leave and stay home.
• Consider providing paid sick leave if you do not already.  Although the FFCRA’s mandatory paid leave requirement has not been renewed, the Biden administration’s stimulus act provides tax credits for employers that grant paid sick and family leave. See here.
• Determine whether contact tracing will be employed to trace the people with whom the potentially ill employee may have been in contact during the workday, and determine what to do with the information obtained (regarding contact tracing in the workplace, tracing by contacted people v. location tracing is likely preferable).
• Although temperature checks at entrances were a common screening technique earlier in the pandemic, COVID-19 patients are frequently asymptomatic while they are infectious, and therefore temperature screenings are at best only a supplemental safety measure.  The risk is that employees may assume that if they don’t have a fever, they are safe to enter the workplace.  Instead, employees and managers should be trained and instructed to consider all potential COVID-19 symptoms.
• Ensure management and HR are aware of obligations to record situations with COVID-positive employees (e.g. on an OSHA 300 log) and to make a report to authorities such as OSHA (e.g. when there is hospitalization or death).
• Balance the apparent need for the employee’s health and other private information against the issues inherent in gathering and using such information. Do a risk assessment.
• Be sensitive and strive to protect the information obtained to the fullest extent possible.

Don’t: Require antibody testing; it is contrary to EEOC guidance and is therefore not recommended.

As always, consider the applicable laws, regulations, orders, and guidance for the relevant jurisdiction(s). Additionally, assess the status of the COVID-19 presence in the jurisdictions involved in the travel. For travel to and from the office, it is likely difficult for the employer to regulate as employees take different forms of transportation (e.g. some employees drive, carpool, take mass transit, etc.). It is also likely not feasible to provide company-funded individualized transportation and/or parking, although some companies are choosing to pay for and/or provide individualized transportation. Therefore, employers should consider the risks of travel to and from work when determining whether to resume work on the company premises. The wise employer will also educate the employees about travel considerations and how to reduce exposure to COVID-19. Regarding business travel, determine whether to allow business travel (e.g. whether it is critical or necessary), under what circumstances business travel may transpire, and the protocol that must be followed (e.g. whether to require the employee to quarantine for a period of time upon returning from the business travel).

Tips:

• Examine the relevant legal and medical factors.
• Encourage employees to consider other ways to fulfill business needs that do not involve travel (e.g. virtual meetings).
• Establish appropriate protocols for necessary business travel.
• Pay attention to the laws, regulations, orders, guidance, and applicable restrictions for the location from which and to which the employee is traveling. See e.g. here.
• Regarding international travel, the U.S. government continues to generally advise against it. See here. Additionally, in light of the prior COVID-19 surges in certain areas of the U.S., certain foreign locations had been prohibiting/restricting travel from the U.S. See e.g. here and here. For example, France recently announced that it would no longer accept unvaccinated travelers from the U.S.
• Regarding domestic travel, with the significant exceptions of Hawaii and Washington D.C. see here and here. Most locations have lifted restrictions on travel and/or requiring a person traveling into the location to quarantine/self-isolate for a period of time. See, e.g. here (New York’s notice that it is no longer requiring quarantining if traveling from a non-contiguous state); see also here.

Certain jurisdictions have requirements that an employer must return certain workers to the workplace, such San Francisco’s ordinance requiring an employer to rehire certain employees laid off because of COVID-19, when the employer seeks to fill the same or similar position formerly held by the laid-off worker. See, e.g. here.

Even if there is no applicable law or document that has the force and effect of law, when determining who should return to work, employers will consider applicable orders and guidance from many sources, such as that from the EEOC, DOL, OSHA, CDC, and state or local equivalents of federal agencies. See, e.g. here. There may be competing considerations. For example, it may be necessary to allow someone with a legally-cognizable disability to work from home and/or even stay home without working if such would be a reasonable accommodation. See Part D (Reasonable Accommodation) of the EEOC’s Technical Assistance Question and Answers. But be careful, because the EEOC takes the position that an employer should not prohibit an employee in a high-risk category as identified by the CDC (e.g. 65 or over or with certain medical conditions) from returning to work unless the employer can establish that the employee has a legally-cognizable disability that poses a “direct threat” to that employee’s health that cannot be eliminated or reduced by providing a reasonable accommodation, a burden that may likely be difficult to establish. See Parts C and G (particularly questions C5 and G4) of the EEOC’s Technical Assistance Question and Answers.

Tips:

• Consider equal-employment-opportunity and health-and-safety related issues.
• Consider allowing employees to volunteer to return to work, rather than dictating which employees must return to work.
• Assess the risks and consider claims that might arise depending on the factors used for determining which employees will return to work first.
• Implementing different procedures for different individuals is generally not advisable. Indeed, absent obtaining legal advice that the company may or must use different procedures, the company should treat all similarly-situated employees the same. Employers should obtain legal advice and, in addition to legal requirements, will also consider applicable guidance on the subject.
• Use legitimate, non-discriminatory, non-retaliatory factors in making decisions.
• Be fair. Be transparent. Be consistent. Be empathetic.
• Consider whether to require certain C-Suite executives or other top management to work from home for coverage reasons (just as the company would not permit all C-Suite executives to travel on the same airplane).

First, determine if the employee is simply reluctant, or actually unwilling to return to the workplace. If the employee is reluctant and there is no underlying reason that implicates a legal consideration, provide appropriate education and information about the company's measures, as that may satisfy the reluctant employee.  Additionally, when deciding what to do, consider collateral factors, such as staffing, employee morale, and the potential loss of valuable employees who may quit because they object to the company’s return-to-work procedures. Many employers will be reluctant to terminate employees or force them to quit, given the difficulties some industries are facing with filling open positions and hiring sufficient staff.  Determine what steps the company may take (e.g. allowing the person to work from home for a period of time, giving the employee the opportunity to remain at home and determining whether that situation should be with or without pay, determining whether to require compliance with the return-to-work direction and what consequences will transpire if the employee does not return to work, etc.).

If the employee is unwilling to return to work and reason implicates a potential legal consideration, study and recognize the company’s applicable legal obligations and proceed accordingly (e.g. if the employee is on a legally-required leave that must continue despite the resumption of work on the company premises, or if the employee has a relevant underlying medical condition that may legally require a reasonable accommodation, etc.). Obtain competent legal and medical advice when determining what is necessary to comply with the law and proceed accordingly.

It is important to recognize that there are circumstances where an employer must allow the employee to work from home (and, under certain circumstances, to pay the person if he/she cannot). Although most government work restriction mandates have been lifted, if the applicable laws or legally-enforceable governor’s or mayoral order(s) for the location(s) in question provide, as some do, that “if you can work from home, you must work from home,” requiring an employee to return to work may be problematic.

Second, COVID-19 high-risk individuals include people with medical conditions that often constitute disabilities, and, if so, depending on the facts and circumstances, the employer may need to make a reasonable accommodation (including possibly permitting work from home or a leave to stay home) under the Americans with Disabilities Act (ADA) and/or state and local equivalents. Also, as an aside, if the employer has allowed remote work during the pandemic, it may be harder to establish that working on the employer’s premises is an “essential job function.”

Third, if the individual has COVID-19, symptoms of COVID-19, or cares for someone under specific circumstances, there are a number of laws that could make requiring the employee to return to the workplace illegal or at least potentially problematic. (And indeed, most employers will want such employees to remain outside of the workplace). Additionally, some state and/or local leave laws (such as child care leave laws) may essentially prohibit the employer from requiring the employee to return to the workplace.

Fourth, even a facially neutral policy (e.g. everyone return to the workplace) could have a discriminatory impact (e.g. on older workers), making it important to analyze legally. On the other hand, the employer should not employ a policy that prohibits a high-risk worker (because of age or medical condition) from returning to the workplace unless that worker also has COVID-19 symptoms or the virus at the time, unless the employer can establish a “direct threat” situation.

Fifth, employers should be cognizant that an employee objecting to returning may seek to assert a retaliation, wrongful termination, constructive discharge, and/or whistleblowing claim if he/she was adversely affected (e.g. terminated, constructively discharged, etc.) for not returning to work where the employee engaged in protected activity (e.g. asserting a good faith belief of a legal violation relating to returning to work).

Sixth, if there is a collective bargaining agreement, there could be issues relating to the employer’s obligations under that contract.

Tips:

• Consider applicable guidance, particularly from the EEOC.
• Use legitimate, non-discriminatory, non-retaliatory factors in determining how to respond.
• Be fair. Be transparent. Most importantly, be consistent in the company’s responses to similar situations.
• Assess the risks and consider claims that might arise if an employee is dismissed for refusing to return.
• If there is no legal impediment or other legitimate business consideration prohibiting the employer from requiring the employee to return to the workplace, consider making the impact of non-compliance clear before requiring the employee to decide whether to return to the workplace and implementing any adverse consequence for failure to return to the workplace.

The prudent employer will examine the applicable laws, regulations, orders, and guidance in the relevant jurisdiction(s), considering special circumstances in the work environment (e.g. office, manufacturing, mining, etc.). See the tips below for additional considerations. For unionized employees, the company should study its obligations under the applicable collective bargaining agreement and proceed accordingly, including consulting a labor lawyer, as appropriate. Don’t forget obligations to and best practices concerning third parties such as clients/customers, vendors, building management, and other third parties.

Tips:

• Pay attention to the ever-changing situation, and make appropriate adjustments. The current Delta variant surge of COVID-19 throughout the U.S. warrants consideration and possible adjustments by the prudent employer to the then-present return-to-work plan.
• The prudent employer will also pay attention to new laws that may not be COVID-19 specific but that may have implications for COVID-19 situations. See here (New York’s new mandatory paid sick leave law affecting all New York employers).
• Employers will also continue to have to reckon with the effects of “long COVID,” namely symptoms that linger long after a person who was infected with COVID-19 has otherwise recovered.  There is only limited government guidance on this issue yet from an employer perspective, however, the EEOC and the Departments of Health and Human Services and the Justice Department’s Civil Rights Division have already recognized that “long COVID” could constitute a disability under the ADA and the Rehabilitation Act. See here.

The Biden Administration announced on September 9, 2021, that OSHA will be issuing a rule requiring all OSHA-covered employers with 100 or more employees to ensure their workforce is fully vaccinated, or require any workers who refuse the vaccine to be tested on at least a weekly basis before coming to work.  The covered employers will also be required to provide paid-time-off for workers to get vaccinated, and to recover after receiving the vaccine. See here.

In addition, the Administration announced that federal contractors will be required to ensure that all of their employees are vaccinated, with no option to take weekly tests in lieu of being vaccinated (extending a similar mandate just announced for federal employees).

Further, the Centers for Medicare & Medicaid Services will require that workers be vaccinated in most health care settings that receive Medicare or Medicaid reimbursement (a majority of health care workers nation-wide).

For employers not covered by these recent federal measures, there is no single authority that can definitively answer whether employers can, or cannot, mandate vaccination, and the answer may vary from one state to the next.  That said, the EEOC’s guidance is clear that employers can mandate that employees receive the COVID-19 vaccine, and doing so does not violate federal law, at least as interpreted by the EEOC.  The EEOC provides the following specifics on how to mandate vaccines in compliance with federal workplace civil rights laws: Employees who refuse to get vaccinated can be excluded from the workplace.

• Employers can require proof of vaccination. The employer should warn employees not to disclose other medical information when providing proof, and should not ask employees why they have not been vaccinated yet.
• If the employee asserts that a disability prevents them from receiving the vaccine, the employer must engage in the ADA’s interactive process, and determine (1) whether a disability in fact precludes receiving the vaccine, and (2) whether a reasonable accommodation is possible. If the employee’s disability does prevent her from receiving the vaccine, and there is no way to provide a reasonable accommodation (absent undue hardship), then the employer should make an individualized assessment of whether the unvaccinated employee poses a “direct threat” to the workplace health and safety of herself or others. This is based on four factors: (a) the duration of the risk; (b) the nature and severity of the potential harm; (c) the likelihood that the potential harm will occur; and (d) the imminence of the potential harm. If there is a direct threat that cannot be reduced to an acceptable level, then the employer can exclude the disabled employee from the workplace, but should not automatically terminate the worker, and should look at further accommodations such as working remotely.
• Similarly, if the employee claims that a religious belief prevents him from receiving the vaccine, the EEOC advises that employers must provide a reasonable accommodation unless it would pose an undue hardship under Title VII of the Civil Rights Act. The EEOC further explains that employers should normally give employees the benefit of the doubt, and assume that their religious belief is sincere; however, the employer may request additional information if it has an objective basis for questioning either the nature of the religious belief or its sincerity. If the employer concludes that it cannot reasonably accommodate the religious employee, then it is lawful to exclude the employee from the workplace, but again, the employer should not automatically terminate the employee.

The EEOC’s guidance also addresses employer-administered vaccination programs.  These are permissible under federal law, but there are several pitfalls, and on balance they are not recommended for most employers. Instead, most employers will prefer to facilitate employees obtaining the vaccine from local government and healthcare providers.

If the employer does opt to administer the vaccine itself, the EEOC recommends the following:

• Do not require employees to receive the vaccine from the employer, instead give employees the option to receive the vaccine elsewhere if they prefer.
• Limit pre-screening questions to avoid eliciting disability-related information: only ask information that is job-related and consistent with the business necessity of administering the vaccine, and do not ask questions that call for genetic information.  Questions that go beyond what is strictly necessary could constitute a medical examination that could violate employees’ ADA and/or Genetic Information Nondiscrimination Act (GINA) rights.

Many employers are using hybrid models for returning to the workplace, rather than reverting completely to pre-COVID working conditions. This can encompass at least two changes from the traditional workplace: both having integral team members who work remotely fulltime, and also having many or even all workers work remotely some of the time. For example, many workers are only in the office three or four days in the week, and work remotely the rest of the time. In addition, some employers have reduced the hours spent in-office on a typical day, and/or have given workers more flexibility in determining when to arrive, and when to leave the workplace. However it is accomplished, such hybrid models raise a number of issues, including:

• Wage and Hour – Hybrid workers who are non-exempt are subject to overtime rules, and employers must ensure remote work time is recorded, and remote overtime paid, accurately.
• Under EEOC guidance, employers must revisit requests to work remotely as an reasonable accommodation for disabilities in light of remote work experience during the COVID pandemic.  See here.
• Discrimination and retaliation – employers should take care that remote working privileges are applied fairly and according to legitimate business needs, as depriving an employee of remote work privileges for discriminatory reasons, or in retaliation for protected activity, is likely to violate equal opportunity and whistleblower laws.
• Remote workers will usually count towards headcount thresholds under various laws such as the FMLA and WARN, and employers need to be aware that they will need to determine which physical office each remote worker counts towards under various workplace laws.  For example, under both the FMLA and the WARN Act, this will be the office from which they receive assignments, and/or where they report to their supervisor.
• Injuries in a home workplace will usually be reportable under OSHA, and OSHA recommends training remote workers on managing workplace fatigue if they work long hours of off-time shifts.
• Employee handbooks and policies: Now is the time to review and update employment policies to cover remote workers.

Mario A. Barrera
Partner
mario.barrera@nortonrosefulbright.com 
+1 210 270 7125

James Hughes 
Senior Counsel 
james.hughes@nortonrosefulbright.com
+1 512 536 5228