Karina B. Sterman

Partner
Fax 310-553-0687
PRINTPDF

“Can I Keep Working from Home?” – Handling Increased Employee Requests to Telework in the Post-Pandemic Return to the Workplace

As mask mandates have been lifted and COVID-19 infection rates go down, many businesses are using this as an opportunity to welcome employees back to their workplaces. It is expected, and we have already seen, that there will be pushback from employees who would like to continue a hybrid or entirely remote work environment. In anticipation of these requests, there are three main points for employers to consider when handling increased employee requests to telework.

An Automatic Yes/No Decision to Telework Requests No Longer Works

The path of “back to normal” no longer is viable. As so often we have had to do in the past, this is a moment of change and adapting to a new normal. Implementing a policy that automatically says either “yes” or “no” to all remote work is not recommended.

Employees may be expecting to continue to work from home to some extent for a variety of reasons:

  • Child care
  • Commuting distances
  • Efficiency
  • Mental and/or physical health

What to Consider When Evaluating Telework Requests

What happens if you do get a request to work from home or resistance to returning to the workplace? How do you begin to evaluate this new normal? There are a number of factors to consider in order for you to decide internally where you want to draw the line and where you want to be flexible as it will have both short‑term and long‑term implications for your company.

  • Review the employee’s actual duties. Depending on the physical and/or operational duties of an employee, the decision to allow an employee to work from home can vary. A line worker (e.g. an employee that works in a warehouse or on an assembly line or in a kitchen) will look very different from an employee that is in a call center. Of course, there are gray areas. If you’re in a regulated industry, one of the considerations for employees working from home is the need for cybersecurity and additional security protocols for people who are working outside of your physical presence. Let's say your company supports a government entity or audits financial institutions. They have extremely robust layers of cybersecurity that are required for employees to access the information on a computer. Thus, it is very challenging to orchestrate that from an employee’s home. One option we saw put into practice was to select only a handful of employees for whom to install full virtual private network (VPN) access and then conduct regular periodic cyber audits.

  • Review the basis for the request. Consider why the employee would like to keep working from home and not return to the office. If the reason is based on a medical issue or a mental health issue, that is categorized on one analytical track, which is a disability accommodation conversation. If it’s for a logistical reason (e.g. when the employee no longer has care for an elderly parent or a toddler, sold their car, or a variety of personal reasons), that's a different analytical framework that doesn't fall into the disability accommodation conversation.

  • Consider the impact on the employee’s team. Is the employee who is requesting to work from home part of a collaborative team? Are they asking for a blended approach or are they asking to continue to work from home permanently? What happens to the rest of the team? If one or more of the employees are not physically present, do you rotate the team on premises on different days?

  • Consider the costs of allowing the person to work from home, such as the cost of equipment. Under California Labor Code 2802, employers are required to reimburse workers for “all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.” This would not only include equipment as basic as a computer, but possibly a new desk chair, a desk, a workstation, an ergonomic footrest, and utilities such as the Internet or a phone line. For employees who wish to work out of state, consider the administrative and tax implications of paying employees in multiple states.

  • Consider the costs of not allowing the person to work from home. Turning down work-from-home arrangements may result in greater employee turnover and loss of talent, and maybe even loss of morale. Employees became accustomed to not having a commute or having the flexibility of running an errand during the day. Removing such flexibility may make it harder to recruit and retain talent.

How to manage telework requests to reduce legal risk

There are several ways employers can manage telework requests to reduce legal risk.

  • Have a written policy, but train for legal issues. This shouldn’t be a surprise, but the first recommendation is to develop a written policy. Having different departments decide what works for their team is not only reinventing the wheel and inefficient, but it creates issues that most managers are not trained to spot. Ideally, HR decision‑makers should devise a comprehensive written policy and train managers to spot legal issues, such as a potential disability issue. Disability issues are not just triggered when an employee raises them directly. Employers are placed on notice about possible disability accommodation in a variety of indirect ways, including informal conversations between an employee and their supervisor, and training is key to getting this right.

  • Document work-from-home interactions. Because of the potential to turn into a disability request, it’s important to document all work from home requests and interactions. We've seen a pattern of various reasons to work from home, starting from it’s for convenience, then it’s an emergency, and then they have a doctor’s note. If these requests are documented in writing, employers are in a much better position to assess the credibility of the information, including the one that triggers an accommodation conversation. These requests could absolutely be genuine, but documentation allows you to recognize a pattern. A related consideration is that managers are not always well-trained in documentation. You want to create a regulated system, such as having an email sent to HR noting that a particular employee asked to work from home, their reason, and what the response was, including whether it was approved and for how long.

  • Treat like with like. If you have denied four people a work-from-home request, and then you have a fifth person that you say yes to, you want to be able to explain why. If there is a medical reason to accommodate for, that is a separate conversation. But that could result in an uncomfortable position where you can't disclose medical conditions to other employees, but you also don't want people to feel like you are picking favorites. To evaluate whether you are treating like with like, you can look at whether they are in the same department or whether they have similar duties.

  • Determine the duration of WFH, and require periodic in-person meetings and/or at least video meetings. If you’re going to permit working from home, determine the duration and require periodic meetings, either in‑person or video. Regardless of how employees feel about their own productivity levels while working from home, what we've seen is that work-from-home employees are increasingly vulnerable to moving companies, doing other work, or no longer feeling a part of the company. Similarly, when managers don't see or connect with the people that report to them, they stop thinking of them, which can lead to other issues such as attrition or potential discrimination actions.

  • Confirm the employee is still working in CA. Employers should periodically confirm which state, county, and city the employee is working in. Not only does California have its own laws that apply to employees, but different cities, counties, and municipalities have their own. So, if an employee was working in one city and then they moved, that could result in several changes, such as the paid sick leave they're entitled to. In the past, employers did not need to know where employees moved for residential purposes, but now their residential dwelling is their place of work. Often, employees are not telling their employers because either it didn't occur to them or they didn’t think it was the employer’s business to know. Employers need to communicate to their work-from-home employees that it is important for the company to know because it affects a myriad of regulations.

  • Confirm your WC insurance accounts for WFH and attendant risks. One of your checklist items as part of your overall design is determining how, and to what extent, your worker's compensation coverage and policies and workplace safety policies need to be changed and updated. If everyone is going to be working from home at some level, your IPP and OSHA policies might need review, and you might need to change a designated compliance person who now is responsible for periodic checks on workplaces to make sure that they meet safety standards for a workplace.