WHAT EVERY EMPLOYER SHOULD CONSIDER WHEN PLANNING A RETURN TO THE OFFICE
As vaccination rates increase, COVID-19 infection rates decrease, and restrictions ease, many businesses are considering returning employees to the office on a more permanent basis. However, due to the fact-specific situations of businesses across many industries, companies must weigh a number of factors when planning a return to the office. One threshold question for planning a return to the office is whether to mandate or encourage that employees receive the vaccine and the accompanying legal implications. The second factor is what steps employers must take if they are going to continue to allow remote work beyond this initial emergency phase of the pandemic.
As an initial matter, subject to federal, state and local limitations on occupancy and ensuring compliance with health and safety measures, employers may legally choose to set a mandatory date for all employees to return to the office, whether paired with a vaccination requirement or not. (Click here for Kane Kessler’s previous Legal Alert regarding mandatory vaccines). However, employers must be prepared to address requests for reasonable accommodations from employees who may have a legitimate, legally justified reason for not physically returning to the office.
Managers and human resources personnel should treat every request for continued remote work sensitively and as a potential request for an accommodation under the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act (“Title VII”), and their state and local counterparts. For example, the ADA provides that employees with a disability may be eligible for a reasonable accommodation if they can perform the essential functions of their job, so long as the request does not cause an undue hardship to the employer. The ADA also requires employers to engage in an interactive process before deciding on what, if any, accommodation may be provided. In addition, businesses must be aware of any applicable state or local laws, such as New York City’s “cooperative dialogue” requirements.
When considering requests for reasonable accommodations, employers must consider the narrow implications pertaining to granting the specific employee’s request as well as ensuring that the company treats all employees fairly utilizing objective criteria to determine whether an accommodation will be granted or denied. This is critical to avoid disparate treatment claims of discrimination if one employee’s request is granted and another similarly-situated employee’s request is denied. Therefore, it is crucial that employers articulate explanations to employees whether the company is granting or denying the request
To help field and address requests for reasonable accommodations, employers should provide training to managerial and human resources staff to respond appropriately and consistently to employees who ask to continue remote work. Additionally, employers should ensure that they implement thorough written policies that outline the procedures for requesting a reasonable accommodation.
In anticipation of some form of return to the office, businesses should create a plan for how to communicate expectations regarding a return to the physical workplace, including whether there will be a mandatory vaccination requirement and what safety measure will exist in the office to provide reassurance to more apprehensive employees. Depending on the timing of the return to office, employers should include caveats that the plans are subject to modifications as guidance from federal, state and local health and safety mandates change over time.
Whether the company will have employees working remotely as a result of requests for reasonable accommodations or due to allowing some form of long-term remote work, there are a number of legal considerations employers must address that were largely ignored during the emergency phase of the pandemic. To determine the extent of their legal obligations, employers must first be aware of the physical location of remote employees to ascertain whether their presence constitutes the company “doing business” in that particular state. If a company is “doing business” in a state other than its state of formation, that company is considered “foreign” and may be subject to qualification or registration requirements to do business in that state.
In addition to registration and reporting requirements, companies may also be subject to tax requirements in foreign jurisdictions where employees physically work. Both employees and their employers may have tax and withholding obligations to those states, including but not limited to unemployment withholdings and paid family leave contributions. The tax and withholding requirements differ among states and become even more complicated for hybrid work when an employee works from home in one state on certain days but travels to another to work in the office on other days.
Furthermore, employers must maintain workers’ compensation insurance coverage in all jurisdictions where employees physically work. Businesses must determine the scope of their current workers’ compensation coverage and whether it includes remote work accidents. Additionally, employers must ascertain whether their workers’ compensation insurance policy requires that remote workers maintain a designated and safe workplace. If so, employers must craft and implement a formal remote work policy that incorporates these requirements.
Every workplace, and workforce, presents unique considerations. Since there is no “one-size-fits-all” approach to making these decisions, companies should consult counsel to help devise and craft a plan that achieves business goals, is sensitive to employee relations, and mitigates risk. If you have any questions about planning for your company’s return to the office, please do not hesitate to contact Valerie K. Ferrier at 212-519-5107 or vferrier@kanekessler.com, Dana M. Susman at 212-519-5136 or dsusman@kanekessler.com, or Jeffrey G. Douglas at 212-519-5183 or jdouglas@kanekessler.com.