Return to office

As COVID-19 restrictions continue to lift across the country, many organizations are considering their return to office plans. While there is still a lot of uncertainty, some employers are requiring that all employees return full-time to the office, while others are taking a hybrid approach or continuing with a full-time remote workforce. For many companies, the pandemic has accelerated the consideration of flexible work models and the examination of how and where work is best performed. As part of this process, many companies are considering factors related to suitability (e.g., do legal or regulatory requirements require work to be performed on site; does the work at issue require collaboration in a way that cannot be done using existing technologies) and readiness (will remote work negatively impact the work of a larger team; will new skills be required to perform the work remotely).¹ Many organizations, financial institutions in particular, have expressed an eagerness to return to the office, citing in part business issues such as facilitation of the apprenticeship model and promoting opportunities for spontaneous learning and creativity.²

Regardless of the approach taken by an organization, there is a risk of COVID-related claims by employees, many of which will trigger coverage under Employment Practices Liability (EPL) insurance policies. Since the start of the COVID-19 pandemic, there have been over 3,400 employment-related complaints filed in state and federal courts.³ The most common allegations include disability discrimination, failure to provide leave, failure to provide accommodations, retaliation, discrimination/harassment, and wage & hour violations (for example, failure to provide overtime and failure to provide meal and rest breaks).

As offices re-open, we expect that employers will continue to face these types of claims. In addition, we expect to see claims regarding vaccine mandates, such as discrimination claims by employees who unsuccessfully sought exemptions for religious or medical/disability reasons.

Further, there is a potential for more discrimination/disparate impact claims if return-to-office policies are not applied consistently and/or if remote workers are treated differently than workers who return to the office. For a further discussion of potential coverage issues under EPL policies related to COVID-19, see here.

In this article, we will briefly review some best practices that companies should consider in developing return to the office plans.

Develop or update remote working policies

Even if an employer decides that all employees must return to the office full-time, there may still be instances where some employees are working remotely, for example, immunocompromised employees or employees with exemptions who are under quarantine. As such, this may be a good opportunity for employers to develop or update policies governing remote working practices, including harassment or discrimination policies. Even with remote working arrangements, harassment or cyber bullying of employees remains a risk that must be addressed. Employers may wish to consider:

• Training supervisors in how to effectively communicate the job expectations with all employees, how to consistently check in with remote employees to discuss concerns, progress, objectives, etc., how to communicate with non-exempt employees after hours, and how to address conflict between employees.
• Developing consistent and clear policies regarding employee performance evaluations and eligibility for promotions, including metrics to measure all employee progress, monitor employee output, and ensure deadlines/targets are met.
• Providing training on anti-discrimination and anti-harassment policies for all employees.
• Ensuring all employees, including remote workers, receive a copy of the employee handbook and confirm their familiarity with its contents.

Develop or update wage & hour policies

Businesses should also make sure to adapt wage and hour policies to address new exposures associated with working remotely, particularly as it pertains to tracking time and recordkeeping. Issues to consider include:

• Establishing or maintaining clear policies regarding overtime and “off the clock” work for non-exempt employees.
• Training non-exempt employees regarding expectations with time tracking and length of time and frequency for meal and rest breaks.
• Monitoring access to the employer’s systems during non-working hours for non-exempt employees.
• Clarifying how absence due to quarantine will be treated from a paid time off perspective.

Develop protocols for employees returning to the work location

Every workplace is different so employers must customize these protocols to address the needs of their specific industry, operations, and location. Employers generally should be transparent and clearly communicate return to the workplace plans to all employees. Issues to consider when developing and communicating such protocols include:

• Will COVID-19 vaccinations be required prior to returning to the office? And what about vaccine mandates?
• Even if vaccinations are required, will masks and social distancing be required in the office?
• What is the plan if someone starts to exhibit symptoms?
• What is the plan for quarantine if an unvaccinated employee has a COVID exposure, whether at work or outside of work?
• What if someone tests positive for COVID-19?
• What if there is an outbreak associated with the workplace?
• Is each business location coordinating with building property managers on workplace safety protocols?

Regulatory and tax considerations

In addition to the issues discussed above, many organizations may also have to take into account issues arising from regulatory and tax requirements governing their particular industry, as well as cybersecurity and risk management issues that are inherent to businesses that conduct significant financial transactions on a regular basis.⁴ If an organization is considering a hybrid model of in-office and remote working, they may need to consider tax implications and regulatory requirements.⁵ From a tax perspective, employees that are working remotely in a jurisdiction different than the tax residence of their employer may inadvertently establish a corporate tax residence in that jurisdiction.⁶ From a regulatory perspective, there may be issues related to the supervision of employees performing certain tasks and/or identification of certain roles where this risk is better managed when the employee is in the office.⁷ Organizations may also need to consider regulatory requirements related to record keeping and recording of conversations, including whether such requirements can be sufficiently met outside the office or with hybrid arrangements.⁸

These are just some of the numerous issues employers must consider when developing protocols governing employees’ return to the workplace. In addition to the items noted, employers must of course ensure compliance with all laws and regulations applicable to their locations. In particular, employers should consider steps to ensure compliance with privacy laws governing the collection of health information from employees.

Best practices and return to workplace guidelines

In sum, the following are some best practices for companies to consider as they develop their plans.

• Consult with legal counsel to ensure compliance with all laws and the guidelines and regulations of local and state public health officials and government agencies.
• Determine whether you will mandate that all employees return full-time, whether you will adopt a hybrid model (e.g., understand employee preferences for ways of working and analyze the work itself to determine options for where/when it gets done) or whether you will continue with a remote work plan and make returning to the office voluntary. Whatever you decide, it is important to keep in mind that EEO laws still apply.
• Communicate your organization’s plan effectively to your employees.
• Be consistent in your decision-making.

Footnotes

¹ https://www.willistowerswatson.com/en-US/Insights/2020/10/getting-flexible-work-right

² https://www.forbes.com/sites/jackkelly/2021/08/04/wall-street-banks-that-demanded-workers-to-return-to-their-offices-may-have-to-change-their-plans-due-to-delta-variant/?sh=2ae9a4c97356.

³ https://www.jacksonlewis.com/covid19-litwatch (updated September 27, 2021).

⁴ https://www.cnn.com/2021/07/29/business/goldman-sachs-vaccine-building/index.html .

⁵ The Alternative Investment Management Association, Industry Guide on Hybrid Working Policies and Practices.

⁶ Id.

⁷ Id.

⁸ Id.

Disclaimer

Each applicable policy of insurance must be reviewed to determine the extent, if any, of coverage for COVID-19. Coverage may vary depending on the jurisdiction and circumstances. For global client programs it is critical to consider all local operations and how policies may or may not include COVID-19 coverage. The information contained herein is not intended to constitute legal or other professional advice and should not be relied upon in lieu of consultation with your own legal and/or other professional advisors. Some of the information in this publication may be compiled by third party sources we consider to be reliable, however we do not guarantee and are not responsible for the accuracy of such information. We assume no duty in contract, tort, or otherwise in connection with this publication and expressly disclaim, to the fullest extent permitted by law, any liability in connection with this publication. Willis Towers Watson offers insurance-related services through its appropriately licensed entities in each jurisdiction in which it operates. COVID-19 is a rapidly evolving situation and changes are occurring frequently. Willis Towers Watson does not undertake to update the information included herein after the date of publication. Accordingly, readers should be aware that certain content may have changed since the date of this publication. Please reach out to the author or your Willis Towers Watson contact for more information.