The Post-Pandemic Workplace

Posted in: Business Law

How can employers reap the benefits of a flexible workplace, without descending into chaos?

The vaccines are here (or will be here soon, we hope!). We can start to see the light at the end of the COVID-19 tunnel. But what will it look like on the other side? When it comes to the workplace, chances are it will look very different from before. To ready your organization and employees for the transition, now is the time to address the where (onsite, remote, hybrid) and when (flexible or fixed hours) of work in the new normal.

Not sure where to start? Here is your free roadmap.

Determine Your Workplace Vision

First thing’s first: start with the big picture. What is your organization’s vision for the workplace going forward? Will it return to the traditional office environment? Go virtual all the way? Or land in the middle, as a hybrid workplace? And what about hours of work—must everyone be on the same clock?

Our collective experience over the last year has taught us many things, good and bad, about remote and flexible work. We won’t bother itemizing all of the upsides and downsides; just do a search for “remote workplace” or “flexible workplace” if you are curious. The bottom line: remote work is a mixed bag. Therefore, the answer for your organization will depend on a variety of factors, such as corporate culture and values, industry, geography, human capital philosophy, and general business strategy.

While there is no one-size-fits-all answer, your organization should commit to an overarching philosophy about remote and flexible work. Without a unifying vision (and clear messaging of that vision), managers will struggle to make decisions about their own teams. Inconsistency will become your worst enemy (and a litigation risk). You will need to account for a number of factors, including fit with organizational culture and legal risks.

Communicate the Workplace Vision

Once decided, the chosen vision must be applied to the workforce, by business unit, function, and individual position. In order to be applied effectively, that workplace vision must be clearly communicated. Remember that, no matter what vision is chosen, some employees will be happy and others will not. People in the same job can feel very differently; some may be thrilled to work at home forever; others pine to return to the office.

How to mitigate disappointment turning into resentment? And how do you ensure managers are consistently executing your vision? Do what many leaders often forget: make sure the vision is simple and clear, explain the values guiding your decision, and acknowledge the impact it may have. And for goodness sakes, write down a policy, at least after you have settled on one.

Define What You Mean by “a Flexible Workplace”

Fundamentally, “all-onsite” or “all-remote” are simple visions in themselves. But if your organization – like many others – is choosing a hybrid or flexible model, how do you boil that down to something simple? And how do you provide clarity and direction for your managers and employees?

First, express what you mean by terms like “hybrid” and “flexible.” Does it apply to both the when and the where of work, or just one of those? For example, if a mixture of onsite and remote work is expected from all or most employees, express that combination as the norm.

While it may sound daunting, there is a way to maintain order around a concept as nebulous as flexibility. The answer lies not in trying to define the flexibility itself, but the limits of that flexibility. In other words, your flexible workplace policy should clearly define boundaries.

Think in terms of maximums and minimums. For example, what are the maximum number of days the employee can be remote each week? What are the core (minimum) hours an employee needs to be available for meetings?

The boundaries set by your flexible workplace policy should empower employees to understand the scope and limits of their personal decision-making. The beauty of a boundary-based policy is its enabling of both consistency and flexibility. Managers can rely on defined limits that ensure baseline operational efficiency. Employees can choose different options, depending on what works best for their personal situation and work style.

Applying the same clear boundaries to similarly situated employees also restrains favoritism and enshrines fairness and equal opportunity. Said otherwise from the cynical lawyer perspective, it can reduce the chance that an employee believes he or she was denied an entitlement and that the denial must somehow reflect a prohibited bias.

During the pandemic, many employers were receptive to (or even encouraged) work-from-home requests. Do you still want to maintain that position? If you don’t, you need to clearly state the new rules and consistently apply them.

Elements of a Flexible/Hybrid Workplace Policy

The When and Where of Work

As mentioned above, ensure that your policy includes clear boundaries regarding the where and when of work. These limits can be role-based, unit- or company-wide, or a mixture of both, but you need be able to articulate and apply them consistently. Either way, the policy should address such parameters as: the minimum number of days/hours onsite; the categories of roles, duties, meetings, or activities that must be performed onsite; the frequency of and response time for communications with managers and customers; and the core hours when the employee must be available. When establishing such boundaries, make clear that employees need not choose the extreme, or do the same exact thing as their coworkers.

The Where of the Home Office

For roles that may be mostly or fully remote, consider carefully boundaries regarding where the employee can situate their home office. May employees choose to live in another state (or country) full time? Aside from practical issues such as time zone and ability to come onsite with short notice, there is the minefield of taxation and local law. If your organization’s workforce was previously onsite (especially if limited to a regional presence), are you ready to tackle multistate or multinational compliance?

The What of the Home Office

During the pandemic, employers have been generally forgiving around makeshift workspaces and interruptions by children, pets, and spouses. What will be considered acceptable afterwards? Can employees work from the sidelines of the little league game, as long as there is a good Wi-Fi connection? Your policy should address the outer limits (if any) of what is okay. Do employees working remotely need a dedicated, private space, generally free of interruption during the workday? Or will your organization choose a results-based model, where “anything goes,” as long as the employee gets their work done?

Ownership, Approval, and Documentation

The policy should also address who owns the various decisions, and how each individual’s arrangement is to be memorialized. With room to choose, the actual choices must be made clear. Ensure that the arrangement is written down somewhere, and that both manager and employee understand how changes or exceptions to that arrangement are to be managed and communicated. On the formal end of the spectrum, HR can require employees and managers to complete a standardized form. On the casual end, an email will suffice (assuming that managers follow through).

Remember the Basics

In any kind of workplace, managers must set clear expectations around goals, deliverables, priorities, and performance. In a hybrid workplace, that need is magnified. Without in-person supervision, and with variability in work styles, employees will need to understand how they will be judged on their outputs and work product. They should receive frequent feedback on how they are doing against those standards. Before moving permanently to a hybrid environment, ensure your managers have the fundamental training and toolkits they need to be effective leaders of people.

During the pandemic, your organization (hopefully) already established clear policies and processes around topics such as equipment reimbursement, technology, and data protection. Likewise, if nonexempt staff have been and will be working from home, you will have clear rules around tracking and reporting of worked time. (This is a complex topic beyond the scope of this article.) If those policies were slapped together in haste, now is a good time to give them a second look and upgrade.

Managing Exceptions

Let’s assume you have followed these steps and created a clear, consistent, flexible workplace policy. What happens when an employee requests to work remotely more often than would otherwise be permitted under that policy? If that request is related to a disability, you will need to consider whether you must make an exception as a reasonable accommodation.

Does the fact that an employer permitted full-time remote work during the pandemic mean the employer must permit remote work permanently, as a reasonable accommodation for a qualified employee with a disability? Perhaps not surprisingly, the EEOC gives the classic lawyer answer: it depends. As with all reasonable accommodation requests, the analysis will depend on factors such as the nature of the job, the potential burden, available alternatives, and the employee’s specific needs.

How should employers approach these requests? First, adhere to your organization’s existing interactive dialogue process. Ensure you understand the specifics of the request and solicit appropriate medical documentation. Is the employee asking to work remotely full-time or part-time, and for how long?

Next, consider the essential duties as they relate to remote versus onsite work. A good starting point is the job description. Assuming it accurately reflects the role, determine whether there are certain core duties that need to be performed in the office, at least some of the time. The EEOC notes that, where the employer may have excused employees from performing one or more essential duties because of COVID-19, the employer need not continue to excuse such duties after the crisis has abated.

You will also need to look closely at the remote work experience during COVID-19. Before the pandemic, employers might have successfully objected to remote work based on speculative concerns such as perceived technology challenges, need for supervision, and ability to collaborate. However, employers can no longer expect the same benefit of the doubt. The EEOC guidance reminds employers to look at the actual COVID-19 experience in assessing these requests. The forced work-from-home experiment provides new evidence around what is reasonable, what is a hardship, and even what duties are truly essential.

Although the EEOC does not come out and say it, as a matter of proof, the bar will be higher for jobs that were performed remotely during the pandemic. Unless the employer can find an alternative accommodation, it must articulate what was missing, sacrificed, or sub-par during the pandemic. The qualitative aspects of a job, such as collaboration, idea generation, and quality of interactions may be challenging to establish convincingly to a fact-finder. The remote work experience has been different for everyone, and fact-finders will inevitably, unconsciously, bring their own experience to the table.

What can employers do now? In addition to setting and communicating clear boundaries in your flexible workplace policy, you have a chance to get ahead of the game on potential accommodation requests. The EEOC guidance makes clear that it is permissible to solicit remote-work reasonable accommodation requests and begin the interactive dialogue in advance of the actual return onsite. When announcing your flexible workplace policy, invite employees you anticipate will be requesting an exception due to disability or medical condition to reach out to the designated HR contact.

Conclusion: Flexibility Doesn’t Have to Spell Chaos

COVID-19 has changed our world. As we have learned, moving forward requires flexible thinking, embracing change, and learning from new experiences. Many managers who were once skeptical of the workability of remote work are now experts on Zoom. The new workplace doesn’t have to be scary or unwieldy. By defining and communicating an institutional vision, setting clear boundaries through policy, and preparing for the inevitable exceptions, employers can capitalize on the value of a flexible workplace model.

Comments are closed.