Part IV: Telework
Employers should expect that, for a wide variety of reasons, employees may request to continue teleworking even as workplaces re-open.
Some employees may be fearful of returning to work, at least initially. Some employees may prefer to telework. In the event that both the employer and the employee determine that teleworking can be mutually beneficial, employers may decide to develop a more permanent telework policy. However, employers should continue to maintain other relevant policies, including attendance policies that must be followed.
Some positions are not well-suited for telework. For example, it is highly unusual for support staff or receptionists to work remotely. Employers can require employees to come to work once prohibitions have been lifted. Requiring an employee to show up for work if it is an essential job function is not against the law. But, while requiring employees to return to work can be the starting premise of an employer, it should not in all cases be the final position.
Employers should work to “over-communicate” with employees. Employers should ask questions and learn about the concerns and fears employees may have in returning to work. Employers should consider all facts and circumstances of employees who express hesitancy in returning to work. Some employees may need to telework due to childcare issues until such time as daycares and schools are permitted to re-open. Employers will need to comply with current regulations concerning leave and teleworking in such circumstances. An employee may have a family member who is susceptible to the disease. The employee themselves may be afraid for their own health, particularly if they are an older employee, are at high risk, or if they know someone who has been sick or died. Employers should engage in the “interactive process” required under the Americans with Disabilities Act. Prepare and meet with the employee to discuss their concerns and possible modifications. Always document the meetings.
Employers should consider possible impacts on management, communication, and staffing when certain operations and employees are on-site and other employees continue to telework, perhaps permanently. Employers should examine whether their Human Resources teams are prepared to respond to requests for reasonable accommodations/flexible work arrangements that would have been denied before the COVID-19 pandemic.
NOTE: We expect to see numerous changes nationwide, and in local and regional orders and guidance as prior workplace restrictions begin to be lifted and new restrictions are issued governing workplace re-openings. We will continue to monitor developments, and update our advice and information accordingly.
We welcome you to review our upcoming blog post – this is the fourth in a series of five – to obtain more detailed advice and guidance on many of the issues concerning COVID-19 and its effect on your business, and to contact Jennifer Weaver, Will Cherry or your Manning Fulton relationship attorney for assistance.
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