The remote work “new normal” has brought up countless questions for employers and employees. At the outset, many office workers were thrilled at their newfound lack of commute, the freedom to work from home, and the demise of business casual. Five months in, challenges have arisen. People are feeling lonely and isolated. We need people, but in a pandemic, where there are people, there is fear.
This delicate situation is only accentuated as stay-in-place measures ease and employees gradually return to the workplace, more stresses and upheavals will arise.
As an employment attorney, I have been aiding employees and employers in navigating return-to-work and remote work issues. As both employees and employers work through the questions and challenges that arise around work in a pandemic, there are areas of employment law that can help, even amid an ever-changing employment landscape in the time of a novel viral pandemic.
The return to work
Just because our workplaces are deemed safe to reopen, it doesn’t mean employees feel safe. Any employee with a medically diagnosed comorbidity should ask for accommodation from their employer. If they are denied, they could and should immediately speak to an employment attorney about obtaining a remote accommodation; doing so could save lives.
If you do not have a health condition that is a known risk for COVID-19, you still may have rights and options if your return to work could place family members who are at-risk for the virus in harm’s way.
Employment in the U.S. is “at-will,” and that makes it a two-way street. Yes, an employer can fire an employee at their discretion. But an employee’s labor and talent has value, and they can take that elsewhere.
It is not unheard of to let an employer know, “Listen, I love working for you but you will lose me if you make me return right now.” You just have to be realistic with yourself before you choose this route, and weigh whether you can accept the consequences of this kind of power play with your boss.
Remote work trends
This is what I’ve seen surface in my practice since March: Work-from-home accommodations are much easier to obtain, for obvious reasons, than they ever were previously. But all of this isolation is also taking its toll. Sexual harassment via messaging apps is higher than I have ever seen it, and working while drunk or on drugs is on the rise.
Many employees have also become very vocal advocating for the Black Lives Matter movement and are facing retaliation for their activism. Many employers have tried to urge silence on this topic, arguing that it is too divisive or political for the workplace. The volume of calls my firm is getting from employees who want their companies to address this topic, but instead are facing backlash, has been astounding.
For any employee facing pushback for voicing their stance on the matter, it is important to know that speaking out or advocating for racial equality in the workplace is a protected activity. If your employer retaliates against you for expressing support for Black Lives Matters, Pride, or any other movement for equality, you may have a claim and certainly have rights.
Knowing your rights (even without HR down the hall)
All of an employee’s old instincts from the workplace remain correct. If an interaction sets off alarms, it’s important to stop and look at why. If a male colleague tends to cut women off on Zoom calls, just like he used to in board meetings, then HR is still your first stop. When you need time off for family leave or to treat a disability, you can still go straight to HR if your manager tells you to just “take your laptop and work from the road.”
Protections in the office do not go away just because your employer cannot currently provide a sufficiently safe workplace.
All of the protections in the office do not go away just because your employer cannot currently provide a sufficiently safe workplace.
Layoffs or firings while working remotely
As mentioned above, most employment in the U.S. is at-will, so no just cause is required for termination. An employee working under a union collective bargaining agreement or a contract specifically requiring cause is different, but these are not as common.
That said, any notion that discrimination, sexual harassment, or retaliation could be a partial motivating factor for termination affords the employee a larger variety of leverage and tactical options.
Rights for essential workers
Many who have become sick at their workplace have wondered if they have legal rights to compensation. In fact, a number of lawsuits in this regard have recently been filed. There is a chance that an employee has a case if the employer has done something negligent. However, the employee will always face the hurdle of actually proving where the employee contracted the virus.
When work-from-home ends
Under stay-in-place orders, many employees fled for the hills—or to parents’ homes. If an employer granted a formerly in-person employee permission to work from, say, Michigan, can you lawfully ask them to return to New York as the virus dissipates and things return to normalcy?
Yes. You can demand an employee move for your company in the absence of contracts stating otherwise. You just have to be ready to accept the employee might say “no, thank you,” and obtain employment elsewhere.
Challenges across industries
A retail establishment might worry about its greeters being assaulted when they ask someone to wear a mask. A bar is going to be obsessed with trying to get staff who work on tips to enforce masking rules that annoy clientele. Tech companies will have seen their employees move all over the globe during remote work, and now they’re wondering how to lure everyone back.
Employers and employees both legitimately need each other right now. They need to work together—and it has become a matter of simple survival in a thousand different industries. If everyone approached each interaction with knowledge of their legal rights and responsibilities and a healthy dose of decency, the need for litigation would be cut in half and the number of businesses that survive 2020 would dramatically increase.
Vincent White is a partner at White, Hilferty & Albanese, a New York-based employment law firm focused on helping people fight sexual harassment and discrimination in the workplace.