Returning to work - a challenging set of decisions

Brian Sommer Profile picture for user brianssommer August 19, 2020
Many firms, consultancies and tech firms are publishing suggestions for businesses to digitally transform and/or re-open during the pandemic. The discounted software and the business guidance are great, but remote work strategies still seem vague and squishy.

social distancing guide

The return to work - everyone’s got an opinion or survey on this subject. Work From Home (WFH) may or may not be a permanent change and employees certainly have concerns about their safety if they do come back to the workplace.

But before we dive into the data, let’s note this: the data is bouncing all over right now and a lot depends on who is surveyed, where they work/live, who is doing the data collection, etc.  While that’s an important caveat, the numbers are definitely big and point to structural changes occurring in the work world.

Let’s recap some of the data we have now.

The state of re-opening and remote work

Business Insider has already identified 17 major firms that will allow employees to work remotely for a long-time. Businesses are finding that they don’t always need lots of expensive office space if employees can work from home. Technically, WFH is possible for millions of workers. Employers are trying to figure out if office work and offices are really all that mandatory. 

Do people want to return to work?  In most surveys I’ve seen, about half of employees want to return to their workplace. PeopleMatters recently reported “68% of employees have resumed work from office across Europe”.  A recent survey by Clutch shows 39% of workers have already returned to work and a large number would like to delay that.

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What few ask in these surveys is why would someone want to return to their workplace? Some employees (e.g., restaurant workers) want to return because it’s the only way they can earn a living. It’s simply not possible for them to work from home.  Some may find work from home to be less productive than office work. Some people may simply miss the ability to interact with colleagues, suppliers and/or customers. And, I suspect there are even some who can’t wait to get a break from their children.

On the other hand, a number of employees have reservations about returning to the workplace. They may be concerned about their own safety especially if they possess a health condition that increases their mortality risk if exposed to COVID-19. They may have members in their household with severe health issues and don’t want to pass along a potentially fatal disease to them. They may have children whose schools require them to home school for now.  The reasons for remote work are multi-faceted, and often, individual decisions. 

With re-opening comes liability 

BusinessWeek had a great analysis on the liability issues that businesses might face as employees return to work as some employees will bring torts with them:

As Americans return to the offices, shops, restaurants, and factories they left months ago, employers are wrestling with the legal consequences of getting U.S. workers back on the job while the pandemic is still spreading. Because there’s no cure or vaccine yet for Covid-19, two things are certain: People will get sick, and many will end up in court demanding safer working conditions or compensation for lost wages and medical bills. 

The threat of lawsuits is definitely real. Chief Executive magazine reports:

According to news reports, more than 460 employment, labor and consumer lawsuits involving coronavirus safety claims had been filed by the end of July. The family of an employee who died after contracting coronavirus sued Walmart in Illinois court in April for allegedly not following CDC guidelines; Amazon warehouse workers sued the online retail giant in June, claiming it failed to adequately track and prevent the spread of the coronavirus among employees; Unions representing 65,000 Las Vegas area casino workers filed lawsuits in June claiming lax coronavirus safety measures at casinos; and experts expect many more lawsuits before the end of the year.

Should employees get COVID-19 after returning to work, they may have some challenges in front of them. First, they may have to pursue any claim under their state’s workers’ compensation system. That could be tough given their growing backlogs, bureaucracy and low payouts. Second, the employee may have to prove that they acquired the disease at work and not elsewhere. 

Employers who don’t do a good job of preparing a safe workplace might be the most vulnerable to litigation. Employers who don’t accommodate those employees with legitimate health concerns (e.g., pre-existing immune-deficiency) could also be vulnerable. 

Fortune Analytics asked the question “Should employers have pandemic legal immunity?” It’s a great question but it leaves open even more questions than it answers. While some in Congress want to tie legal immunity as a condition of more pandemic relief, the devil may be in the details. For example, would this immunity apply to all employers, even the ones who didn’t enforce basic safety protocols, test employees for #COVID19, require masks for customers/suppliers/etc.? Or, must an employer prove their adherence to a minimum standard of care before they can get legal immunity? 

Fortune looked at companies that have fired returning workers who would not sign a liability waiver. Here’s a bit from that piece:

As employers in California and across the country ask employees to return to the workplace, many have considered and some are requiring employees to sign similar waivers, employment lawyers say. And many employees, mostly lower-wage and minority workers in essential jobs, are calling lawyers to complain about the waivers.

These are illegal agreements that are totally unfair to workers,” said Christian Schreiber, a San Francisco lawyer who represents Aguilar and other employees.

The California State Legislature last year passed a law, AB-51, prohibiting employers from requiring employees or job applicants to sign away their right to pursue legal claims or benefits under state law. The law, which also prohibits firing any employee for refusing to sign, is being challenged in court by business groups.

Kiplinger’s looked at this issue and asked if an employer can demand you return to the workplace? Quotage:

If you have a medical condition that puts you at high risk should you get COVID-19 (such as diabetes, heart disease or COPD), you have some protections under the American with Disabilities Act, which prohibits employers from discriminating against employees who are disabled. According to the Equal Employment Opportunity Commission, employees with disabilities that put them at high risk for complications from the pandemic can request telework as a “reasonable accommodation” to reduce their chances of infection.

Kiplinger’s also weighed in on the challenge when schools are closed but parents must stay home to teach them. 

What should employers do?

The consensus advice appears to include:

  • Documentation – Employers should consult with a variety of experts and public officials to understand what actions they should be taking prior to re-opening. All of these meetings should be well documented so that employers can point to this as proof of their efforts to prevent additional infections. 
  • Do more than the minimum – Employers who cut corners or only implement the barest of protections for workers will likely be on the receiving end of litigation, public outcry and more. They may also find their operations are not up to snuff from regulators like OSHA. The best defense may be to find the best practices across different government, industry and medical groups and implement these.
  • Watch for frequent changes in best practices – This is new ground that’s being broken. Don’t expect today’s responses to be relevant in a few days/weeks/months.
  • Be ready to change – Pandemics don’t necessarily move in straight, linear paths. Infections may wane for a time only to surge again. One minute the government will permit you to re-open only to take this away in another time. Companies have to realize that re-opening may not be permanent.
  • Precautions alone won’t provide your firm immunity from lawsuits – If you adopt an aggressive, uncaring or reckless approach to re-opening, you may become a target for lawsuits. Ask yourself, would a jury find your re-opening actions contemptible or supportive. If it’s the former, you could lose a lot in monetary damages and in brand damage.   
  • Create detailed policies and enforce them – Policies and practices that don’t get enforced will get a firm into trouble. The toughest issue may be in deciding who should enforce them. Some retailers hire off-duty police or third-party security personnel to monitor who is coming into their stores and to monitor their compliance with new rules. Some firms expect employees to monitor customers and some expect customers to monitor themselves. Ask yourself, is saving a few bucks worth the added liability risk?
  • Train employees – Make sure employees know what the new workplace rules and new responsibilities are. Unaware or untrained employees are a workplace liability.
  • Give employees choices when/where appropriate – Some employees may not be able to return to the office for a while even though may be able to return full-time for a period of time. A one-size-fits-all approach may not work for everyone, every time. 
  • Be careful in demanding to know why a worker does not want to return to the workplace – Collecting detailed health information is highly intrusive and could violate some privacy laws. 
  • Monitoring employee health may be challenging from a data collection and data protection standpoint 
  • Prepare for some unfortunate events – How will your employees react if one of their own perishes from the coronavirus? Whether or not you can prove where/how the employee contracted the disease, employees may believe that the company or its management are culpable. Could this trigger employee unrest, strikes, etc.? 
  • Devise re-opening strategies for now and for after a vaccine is available – These are two distinct situations that will require two different game plans. 
  • Understand and monitor your desired risk profile – Every firm’s re-opening response will fall somewhere between Aggressive and Cautious. The more aggressive you are, the greater number of precautions you must make. Just ensure everyone is aligned on this. In one firm that has adopted a very low-risk re-opening approach, their Controller is pushing for all Accounting personnel to be back in the office 6 days/week. The Controller’s rationale is that he has been unaffected and working in the (up till now empty) offices and now everyone needs to join him. This has lawsuit written all over it.  

What should employees do?

  • Communicate – If you believe you need to stay remote, you need to communicate this to your firm’s leadership. To the extent you can or are comfortable with, tell them why you need this and, what if any, alternatives are acceptable for you. 
  • Negotiate - If you can’t or don’t want to return to the workplace, negotiate with management. If they’re not aware of your concerns/needs they can’t accommodate them. Be reasonable and hope that management is reasonable, too. 
  • Protect a family member with a health issue - This may be a tough one. Employers may accommodate a worker with a pre-existing health issue but may not be so flexible re: one of your family members. No source I checked with had any solid recommendations on this issue.
  • Education and work conflicts can be tough – Parents are dealing with school closures, home schooling and partial school openings. Moreover, schools, like workplaces, may re-open only to close again if the infection rate surges once more. If parents must home school children, they may need to remain remote. As before, communicate and negotiate may be your best options. On a related point, Bloomberg reported on how closed day care operations are driving WFH demand.

My take

WFH plans must be nuanced, flexible and thoughtful. They’ll never be perfect and they will certainly change. The smart firms will anticipate this and create reasonable, caring and empathic solutions. But woe to the reckless as they’ll suffer in the courts and in the court of public opinion.  

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