Congratulations. If you are reading this, it is probably only the 100th article you have read related to COVID-19. Not to worry, this is not an academic lecture on city, state, or federal regulations. Rather, it is meant to help professionals consider the practical and legal issues that may arise when deciding the best model to adopt for returning to work.

As there is no one-size-fits-all approach, we consider several factors below, and provide some practical guidance for adopting a return-to-work model and drafting appropriate policies.

A Societal Shift

Prior to March 2020, society was already beginning to experience a shift toward work from home. For instance, if you were employed by a tech or law firm, chances are that, depending on your job classification, work could be performed on a plane, train, or even from home. While an employee may not have all the comforts of a traditional office, the employee could effectively complete the job with a laptop and a cellphone. Yet, even with the flexibilities associated with remote work, most employees still reported to a physical location.

Enter COVID-19. With little warning, employers and employees alike had to adapt to a fully remote platform. Many asked whether this could be achieved on a large scale. What about traditional norms and values? What about client-sensitive data? When are people going to see their colleagues again?

Despite the litany of questions, many of these same employers and employees who were non-committal to the idea of remote work actually came to embrace what is now considered the new normal. Now the question becomes: Do organizations adopt a fully remote work schedule, a full return to work, or do they meet in the middle by embracing a hybrid model?

Office, Remote, and Hybrid Work

Many people use the terms office, remote, and hybrid work with interchangeability and without understanding their distinct meanings. It is important to distinguish between these terms and their applicability:

Office work is when employees are in the office on a full-time basis, with little to no access to remote work. Organizations that typically adopt this model are in retail, hospitality, and health care. For the majority of organizations, regardless of the type of work, this was the prevalent model prior to COVID-19.

Remote work is where an organization allows its employees to work from home or off-site. During COVID-19, this is the model that most employers adopted to keep work moving forward.

Hybrid work allows for employees to work from home a few days a week while working a few days a week in the office. As we continue to emerge from COVID-19, this is the model that more employers are beginning to adopt.

With so many models available, which one does an organization adopt moving forward? The answer typically depends on the business needs of the organization. For organizations with flexibility in their office model, the analysis is complex. In addressing a full return to work, the office model theoretically allows for an organization to incorporate the best and fullest use of its resources. Individuals are able to work side-by-side, collaborate, use company resources, and socialize with others. Some argue that employees are more accountable in the office, and that they can address issues as they arise while working to meet deadlines. All of these factors are meant to facilitate a cohesive workforce, improve revenue, and retain talent.

Yet, when contemplating full-time return to work, there are also other factors to consider. For instance, how does an organization address fatigue, scheduling, and accommodations while also monitoring the ever-evolving guidance on COVID-19? Further, how does the employer address those who simply do not want to come back to the office? These are real-life considerations, and employers must address these situations when considering a return-to-work policy.

Organizations have found that remote work is adaptable and sustainable if used correctly. For organizations that do not need all employees in one space, this is an ideal model. Employers have been able to increase revenues, decrease costs, transition to different work models, and update outdated technology. Employees have also come to enjoy savings from the costs associated with transportation and parking. With the rise in fuel costs, some individuals in states such as California are noticing huge financial savings. Others have found that they can accomplish more work from home based on the time saved commuting to and from the office.

But work from home does not come without its share of issues. While platforms such as Slack, Jabber, and Zoom allow for instant communication with others, responsiveness is not always what one could expect in the office. Depending on the product that is due to the client, accountability can be an issue when it comes to team members and their responsibilities. Then there is the issue of when work actually stops (for instance, if it is OK to keep contacting team members after they’ve signed off?).

That brings us to the hybrid work model, which allows for a balancing act between work from home and the office. This arguably allows for the greatest flexibility and compromise between employers and employees. Organizations can maintain vital office space, often under lease, for several years, or reduce their footprint by creating shared workspaces. In addition, employees can work at the office and at home without using PTO. Under this model, the employee comes into the office two to three days per week, and then works from home the remaining time. As society emerges from COVID-19, this is the model many employers are adopting, and it appears to be here to stay.

Factors to Consider

How can an organization determine its best strategy? There may not be complete buy-in on the correct course of action, but there are certain factors employers should consider and questions they should ask themselves to start off on the right foot:

  • As an organization, what will our policy be concerning COVID-19 (i.e., mandatory vaccination, regular testing, etc.)?
  • Is there a possibility of losing talent if employees are required to return to the office full time?
  • Is there a possibility that the organization will not be able to attract the best talent if employees are required to work in the office full time?
  • Have employees and management been interviewed to consider their preference moving forward?
  • Does the organization have the policies and staff in place to adopt any of these models?
  • Has the organization developed a list of employees who are eligible for remote work?
  • If eligible employees are allowed to work from home, what hours must the employees be available?
  • What technology must the employees have and when must they respond to inquiries?
  • Does the organization have policies and guidance in place to address business reimbursements? Do they comply with state law?
  • Does the organization have policies and guidance in place to address requests for accommodations?

Of course, this is not a complete list of questions or issues to consider. However, it does provide a starting point. Upon adopting a model and beginning to put policies and guidance in place, the organization should carefully amend its existing policies, create new policies where applicable, and consider trainings when relevant. One tip is to make sure that the policies reflect the current environment while also staying true to the needs of the organization. Employers should work with their in-house or outside counsel to make sure its model and policies comply with city, state, and federal laws.

Legal Considerations

Regardless of the decision the organization reaches, there is always the potential for litigation. Employers considering bringing their employees back to the office on a full-time basis should continue to evaluate individual requests for accommodations (medical and religious) and evaluate as requests are presented. In implementing an interactive process, employers will avoid several litigation-related issues, while also possibly avoiding a retaliation claim.

Regarding work-from-home considerations, employers must be mindful of wage and hour claims. While hours worked is one thing, reimbursement of expenses is an ever-growing litigation trend. Employers are now being sued for improper reimbursement of business expenses, especially in states such as California and New York. Developing these policies in advance and making sure all employees are aware of them should help alleviate some of this liability.