Is it Time to Start Thinking About Bringing Employees Back to the Office?

The United States has ramped up vaccinations to 2.5 million per day. States are relaxing restrictions. Schools are opening their doors. Fear seems to be receding. Employers of remote workers see a business boom coming and are restless to bring their people back.

The pressure is building to return to the office. Still, it won’t be as simple and easy as sending out an email saying, “We’ll see you Monday!” Organizations are going to need, among other things, a written policy. A clear, detailed policy that protects employees and minimizes liability is in everyone’s interest–except maybe the people who have to come up with it. Some of the questions and issues this policy should address would keep King Solomon awake at night.

Here are some things to consider:

1. Can people opt out of returning? Employees were forced from the office. That worked. Why wouldn’t forcing them to come back work just as well? Hmm, read on.
   
   
2. Define “safe.” The CDC says “All employers should conduct risk and hazard assessments for all types of workers and then create plans to address identified hazards. Employers can use OSHA's tools for hazard identification and assessment.”
   
   So let’s look at what OSHA, the federal agency that mandates safe workplaces, says. The OSHA website features a publication, “Guidance for Preparing Workplaces for COVID-19.” The “guidance,” however, is just that. The introduction takes pains to emphasize that it is only proposing measures. The measures don’t have the force of law. Presumably, though, if you can demonstrate that you are following the guidance scrupulously, you are less vulnerable to lawsuits, except that the guide says that you should consider remote work for at least some of your employees.
   
   Are we back to where we started? To minimize legal risk, employers should seek the advice of a labor law attorney before eliminating the work-at-home option.

3. Define “safe” (continued). Of course, states and localities also have their rules and regulations. In many instances, they are at odds with the recommendations of federal authorities. Even within a state (e.g., Texas and Florida) there is no guarantee of uniformity.
   
   
4. Define “safe” (last, I promise!). Regarding COVID-19, the most authoritative authority for many people isn’t necessarily associated with a government agency. Websites, politicians, TV, radio, family, and friends may all have opinions that differ from official pronouncements. We are all well aware of the heated disputes, not just about what is safe and efficacious, but whether the safety issue itself is overblown or given undue priority. Most businesses will resist “going there” with their stakeholders, but any policy should anticipate a broad range of objections.

Where does this leave employers who want to get things back to normal? To be blunt, it leaves them hanging. According to an attorney with Dorsey & Whitney LLP, Douglas Lang, “…there’s no vaccine for the new wave of litigation.” A COVID liability shield for businesses at the federal level has yet to pass Congress. At the state level, pertinent liability shields are a patchwork. Your business insurance may provide certain kinds of protection, but the prudent action would be to schedule a review with your agent.

At this point, then, employers should create and implement a policy based upon federal, state and local recommendations that represents a maximal approach to safety. Return to the office should be entirely voluntary without rewards or penalties for how employees decide.

Hopefully things will soon get easier and clearer.

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