Getting Back to the Workplace: To Be or Not to Be (In the Office)

Photo by Anelale Nájera on Unsplash

Part II in the new Fenway Law series, “Getting Back to the Workplace” — a guide for businesses emerging from COVID-19 pandemic restrictions. Part I covered Mandatory Vaccinations in the Workplace.

Let’s talk about what the post-pandemic workplace might look like for office dwellers.

With recent approval of a third COVID-19 vaccine in the United States, declining infection and mortality rates, and warmer spring and summer days ahead, employers are thinking about making permanent the changes that have upended traditional workplace norms in last year. In a post-pandemic workplace, who comes back to the office?

State level restrictions are easing the path for return. In Massachusetts, Governor Charlie Baker lifted or modified a number of COVID-19 restrictions across public and private spaces last week, with office spaces are now at 50% capacity (or, a maximum of 10 persons per 1,000 square feet of office space). However, Commonwealth Magazine reports that as many as half of all state employees may continue to work from home in a part-time capacity after all pandemic restrictions are lifted, and many large institutional employers have told most workers not to expect a return prior to June, and in some cases as late as September or into early 2022.

This hesitance is in line with a number of public health officials, who have warned against returning to the normal routine too quickly while also balancing the impacts of the pandemic on the broader community. Michael Colanti, a Zuckerman Fellow in the Center for Public Leadership at the Harvard Kennedy School and a former emergency management planner for the Boston Public Health Commission, says “risk mitigation is not risk elimination, and any risk assessment must take into account a comprehensive set of factors beyond COVID-19 transmission rates. While the threat posed by the virus remains with us, we must continue to assess the risk tradeoffs in other areas that are also experiencing severe health impacts, such as mental health, substance abuse, food and housing insecurity created by loss of employment, and the long term consequences of lost education for our children.”

The Hybrid Approach

With uncertainty about the duration of current safety measures, some in the tech industry are adopting a fully-remote work policy where there is no default work location. As we discussed in Part 1 of the Getting Back to the Workplace series, Boston-based marketing software firm Drift is on the leading edge of this “hybrid” approach, abandoning large traditional office space for smaller, “conversation spaces” that can be used for client meetings and team collaboration work. The experience of the last year has been a proof point for knowledge-based professional services organizations in the financial services, consulting and legal sectors. Tech giants Facebook, Twitter and Google are each adopting a similar approach, with employees agreeing to reside within a certain distance from work hubs in order to remain available for in-person meetings and other tasks.

For many other organizations, in-office staffing will return as pandemic restrictions continue to ease. A study conducted by the consulting firm Mercer six weeks into the pandemic (May 2020) found that employers expect one in five full-time employees to work in a remote capacity after the pandemic. According to another recent report from McKinsey, that would represent a four-fold increase from pre-pandemic levels and trigger a profound effect on an organization’s footprint and related costs. A Global Workplace Analytics estimate that the average employer can reduce $11,000 in costs per employee per year for every person who works remotely half of the time and $10,000 per worker per year in real estate costs alone.

Nevertheless, at some point in the next year companies can expect nearly 80% of the pre-pandemic workforce to return to the office in a full-time or hybrid capacity.

Planning for the New Normal

In this environment, human resources are dusting off their work from home policies in light of our recent shared experiences, and the prospect for a permanent shift in the way organizations conduct work. The concept of remote work is not a new one: the EEOC has maintained guidelines on remote work since at least 2003. However, the past year has been a crash course in figuring out remote operations while maintaining operations. Many enterprises have seen considerable success: 67% of workplaces saw productivity remain level, and 27% saw an increase.

In the meantime, employers have become accustomed to returning workers (and customers) to the office in a safe manner: mask wearing, social distancing, sanitary practices and similar efforts will remain in place for the foreseeable future. In this “new normal,” key organizational considerations focus on the right mix of risk and oversight, flexibility and collaboration, cost and productivity.

In crafting a permanent remote work policy, organizations should consider:

  1. What are the equity impacts? Employers need to take a task-based approach to evaluating remote work assignments, and avoid casting a wide net in approving (or denying) full departments or position classifications. Make sure your position descriptions are up to date, and then consider which organizational functions can only be performed in the office and which may be capably performed on a remote basis. A task-based approach mitigates the risk of employee legal challenges to work location assignments on account of age, disability or other protected classifications. Maintaining a consistent and factual approach to evaluating the work that may be performed on a remote basis is key to maintaining good employee relations and consistent operations. Counsel can assist managers and human resources to assess disability concerns and other considerations in developing a work location assignment protocol.
  2. Can you manage a remote workforce? Organizations may have survived a trial by fire over the last year, but the longer-term enterprise risks associated with permanent remote work assignments remain. Chief among these concerns is the threat of cyber attacks. The vulnerabilities of a dispersed workforce laboring on a patchwork of networks can create opportunity for hackers and thieves. Organizations need to invest in secure hardware, software and support to protect the enterprise. Companies need to consult information security experts to assure that critical data is protected and privacy is maintained in a remote work environment.
    Managers must also be able to provide effective direction and oversight to workers. Operations need goals, and employees need feedback. Employers need to set clear limits on working hours to avoid costly wage and hour claims and overtime liability. Executives should be working closely with human resources professionals to assure that managers are available to employees seeking direction, are enforcing working hours expectations, and assuring that performance reviews are completed in a timely and effective manner.
    Employers also need to keep a watchful eye out for injuries that may occur during work time in the home or other remote setting. Over the years, organizations have invested billions of dollars in ergonomic work settings to promote employee comfort and reduce repetitive stress injuries. Since last March, many office workers have been using substandard seating, typing and lighting in what was once thought by many to be a temporary arrangement. As with technology, employers need to consider investing in safe and durable office materials for remote workers.
  3. Maintain cohesion between in-office and remote employees. Organizations need to think tactically about supporting and maintaining company culture and collaboration. One recent article discussed the concept of “presenteeism” — will in-office employees be treated differently than remote workers? Employers need to work with human resources to assure that teams continue to work together, regardless of work location.
    For employees that must come in to the office, will your organization impose location, function or sanitary restrictions on those that refuse vaccinations? Review Part I in this series, on Mandating Employee Vaccinations at Work, for more on these considerations.
  4. Be prepared for the next time. There is never a better time than the tail end of a crisis to begin an after-action report. While the crisis management manual your organization wrote during the SARS epidemic may never have left the shelf after this pandemic began, an ounce of prevention can truly be worth worth a pound of cure. Many administrators can attest to the need for a current plan, and maintaining a regular schedule for policy reviews and updates can best prepare a business for responding to the unexpected. Colanti recommends that executives, human resources, facilities, finance, risk management and counsel start now to collect lessons learned from the COVID-19 experience across the organization to create or update a crisis management protocol. Whether it be for a natural disaster, or the next pandemic, an organization’s ability to shift operations without loss of productivity or unanticipated costs can mean the difference for survival.

The Takeaway

Employers should be in the process of reviewing remote work policies now in order to be prepared for the post-pandemic workplace. Businesses must take care to articulate a non-discriminatory rationale for treating remote and in-person workers differently in an organization, and leaders should consult with counsel and human resources executives to ensure that operations in the post-pandemic workplace are safe, productive, and — most of all — prepared for the next challenge.

Michael Loconto is a Boston-based attorney and consultant, and can help your business think through post-pandemic workforce strategies and crisis management planning. Keep an eye on this space for upcoming previews of the Labor and Education departments in the Biden administration. If you like what you read, follow Mike on Medium and subscribe through Substack.

Boston, MA attorney and consultant specializing in labor and employment law, dispute resolution and government relations.