The COVID-19 pandemic may permanently change the landscape of the workplace, which means that workplace policies will need to change to reflect that new landscape. There has been much speculation about whether employees who have been working remotely through the pandemic will ever physically return to a traditional office. Although the numbers are not yet known, it is fair to assume that many employees will never return to the office, and many of those who do, will return on a hybrid basis, splitting their time between the office and home. The only thing that seems clear is that there will be lasting differences in how and where employees will work after the pandemic.
Throughout the last several months, employers have been busy developing novel workplace policies triggered by the pandemic, including remote working policies, workplace safety and exposure policies, leave policies, travel policies, and even vaccination policies. If the pandemic has permanently changed the landscape of the workplace, however, employers will need to re- examine all existing policies in their employee handbooks and re-work them to better reflect the realities of a permanent remote or hybrid work force.
The traditional employee handbook is written through the lens of a pre-COVID world where most employees report to work at traditional worksites and during traditional work hours. The typical Attendance and Work Hours policy, for example, may be written to reflect a workforce that reports to an actual office location, where employees are expected to report to work “on time” and remain at work during “regular business hours.”
Although these concepts may continue to apply for a portion of the workforce, they may not so readily apply to a non-commuting workforce where the line between work hours and personal life is blurred. Employers should revise their attendance policies to reflect specific expectations for remote and hybrid workers. Will the employer require employees working remotely to be available during certain core hours? How will employers ensure that their non-exempt employees are not working more than 40 hours in a workweek or beyond their scheduled workday? To avoid wage and hour law issues, employers should address how remote non- exempt employees should accurately record all hours worked, including all work performed outside of normal business hours.
Some other examples of policies that will need to be re-examined include Confidentiality policies, Sexual Harassment and Discrimination policies, and Workplace Safety policies:
Confidentiality policies are not always written to reflect the unique challenges of keeping sensitive information secure while employees are working from places like their living rooms where other family members may be present. There are many other confidentiality concerns for employers with a new or growing remote workforce. Will employees be allowed to use their personal computers for work? Will other household members be permitted to use work computers? How should employees secure and maintain confidential or proprietary information at home? How should employees protect trade secrets during videoconferences? A recent Delaware court highlighted this last problem when it found that a company had not adequately protected its trade secrets because it revealed them during a videoconference without using the platform’s privacy and security features. Employers may need to revise their confidentiality policies to better address the unique security and confidentiality issues associated with videoconferences and working from remote locations.
Sexual Harassment and Discrimination policies typically emphasize behavior that is prohibited in the workplace. In the past, we have often thought of the workplace as a physical brick and mortar building, but the workplace potentially encompasses any place where an employee works. This is a good time to revise policies to emphasize that the workplace can include all remote working locations, including homes, and that sexual harassment and other forms of discrimination are prohibited while employees are working from any remote location.
Workplace Safety policies tend to address hazards in the traditional workplace, but an employer’s duty under OSHA to provide a workplace that is free from recognized hazards may potentially apply to the home if that is the workplace. Similarly, an employer’s duty under the Americans with Disabilities Act to provide reasonable accommodation may potentially extend to accommodations in the home if that is where the employee works. Employers may want to revise their policies to encourage remote workers to report problems early, so that employers can help eliminate work area safety hazards, and other problems employees are experiencing, including those relating to mental health, before they become workers’ compensation claims, disability claims or discrimination complaints.
Return of Property policies, Office Closure policies, Dress Code policies, and other workplace policies, should also be re-examined:
There are many other workplace policies that are ripe for revision in the wake of this pandemic, such as Return of Property policies that may not address how remote employees must return company property on their last day of work, Office Closure policies which may no longer reflect what should happen during snow storms when the office is closed, and even Dress Code policies that may not address clothing expectations (both above and below the waist) while working from home, particularly during videoconferences.
Now is the perfect time for companies to dust off their old employee handbooks and re- imagine their workplace policies to reflect the realities of a post-COVID world. The attorneys at Cohen Kraemer Law, LLC, are available to work with companies to develop customized policies that reflect their companies’ values and that comply with state and federal laws.