Returning to the Office — Employer Legal Liability

Offices are reopening their doors after a year plus of interruptions, closures, and remote work during the COVID-19 pandemic. As more and more Americans are vaccinated and state and local restrictions lifted, employers are considering how best to navigate reopening and shifting back on site. What should employers be thinking about as they plan a return?

Labor and employment law expert Sara Kalis (at the firm Paul Hastings at the time of this interview) explores potential liability issues and offers practical advice on return-to-office policies and procedures. She explains some of the key considerations including OSHA’s health and safety requirements, social distancing plans, leave policies, workplace accommodations, and communications with employees. As Sara cautions, employers need to understand that the office environment post-COVID may be different from pre-COVID, and the policies should reflect those changes accordingly.

Returning to the Office — Employer Legal Liability Brief Transcript

Interview with Labor and Employment Law Expert – Sara Kalis

Joel Cohen (Host): Today, we're talking about getting back to work and some of the legal questions that companies are facing as they're welcoming their employees back into the office. Hello, and welcome to TalksOnLaw. I'm Joel Cohen. Today, we're joined remotely by Sarah Kalis of the law firm Paul Hastings.


Employer Obligation to Maintain Health and Safety

Host: Sarah, when we think of going back to work, are employers responsible, or perhaps more importantly, are they liable for the health and safety of their employees?

Sara Kalis (SK): Great question, Joel. So big picture, employers have an obligation to maintain a safe workplace. They have an OSHA obligation, actually, to follow certain protocols to make sure that that safe workplace does follow standards. What does that mean though when an employer implements policies requiring employees to maintain social distancing and then employees decide not to maintain that social distance? I think it's challenging because you can't waive that OSHA obligation, but on the flip side, you also can't force employees to maintain their social distancing if they're the ones voluntarily choosing to avoid social distancing. So it's a balance between the two. What I've counseled a lot of clients to do is make sure that your policies have an acknowledgement, making sure the policies are up-to-date and current and compliant while at the same time making sure employees are aware of those policies and they've been trained on those policies, work together so that you have the acknowledgement so that you have the best defense possible. Is it a complete slam dunk? Of course not. Nothing ever is.

Host: Sarah what are some of the guidelines or regulatory hurdles that companies need to be thinking about?

SK: Sure, well guidance has been constantly changing and so it's difficult for companies to say what guidance prevails. If at the end of the day your biggest concern is litigation risk and what is most defensible, you really need to think big picture then and implement and follow the most restrictive guidance. And landlords, going one step further, expect you to maintain a workplace that is free from hazards, and so that piece of it, the reasonable steps that you need to take to maintain a safe workplace really is to follow the guidelines. And when you're looking at two separate guidelines the more restrictive is going to be the best defensible.


Practical Considerations: Policies, Communications, and Accommodations

Host: Sarah, what about some of the basic concerns that all employers are having, how to make an office safe for their employees?

SK: Yeah, of course the first thing employers need to do is realize that post-COVID at least in the near term is going to look different than what the normal office looked like and coming to that realization is critical. But even beyond that is notifying employees of your plans and of your expectations. Understanding what employees’ concerns are will help you better plan for returning to the office if you aren't back already. And when we're thinking about health and safety, there's a lot that goes into planning the return to the office. First, you want to tell employees, as I said earlier, about the significant efforts that you are undertaking. Every little step that employees understand that you're taking, efforts to improve the workplace for them will improve the office morale which will make returning to work much easier for everyone. Second, you want to clearly communicate anticipated changes and the requirements prior to employees returning to work. Things like temperature checks, things like whether it's an app or whether it's online that they're going in and certifying that they don't have these symptoms prior to returning to work, employees need to know what's expected of them. You also should be reinforcing your sick leave policies. Employees need to be reminded that if they're sick, they should stay home. There are a lot of changes in the law here, a lot of local changes that you need to be aware of to make sure that your policies are compliant and that you're providing sufficient sick leave for employees.

Host: What about if the employee just doesn't want to come in? Is that risk aversion something that needs to be reflected in employee manuals?

SK: We have seen many employers struggle with that concept of employees who don't want to return to work. You should ask yourself, do you have a legal obligation to accommodate the request. Perhaps you didn't before, but the landscape looks different now so you need to be thinking about whether you need to engage in the interactive process, and I know that's a phrase that many people shy away from.

Host: Interactive process. I mean without going in depth too much, can you give a quick gloss on what that is?

SK: Sure, so you have to engage in a conversation with the employee to determine whether what they're asking you to do is something that you can reasonably accommodate. Can you change your job or the job that employee is performing to be able to accommodate that employee's needs? Does it become an undue hardship? Working virtually before could be seen as an undue hardship. Today, working virtually is a very different world, and so you really do need to look at, big picture, can you accommodate it? If you do decide to accommodate a virtual work from home, but you know you don't want to do that long term, it is a best practice to memorialize that expectation in writing with employees so that there is no expectation that they will be working virtually indefinitely. And one further thing, remember that when you're making accommodations like this, one accommodation for one individual really does set a precedent and you need to be aware that other employees will expect the same thing. And if you don't offer the same accommodation, you need to have a really good reason why.

Host: And by that you mean perhaps the company would need to memorialize as well the justification. Perhaps this employee is client-facing or this employee needs to be in the office to do their responsibilities because why.

SK: Yeah absolutely. It's memorializing why are you making the distinction. A lot of employers are going through this process right now when they're saying which employees need to be back in the office first. Is the accounting department really one that can work remotely more often and why is that? It's because a lot more of their job might be on the computer and less in-person face time. Whereas you have a sales manager who sure right now working via zoom is expected or even encouraged but when things are 100% back to normal, that sales manager that you expect to be in person really needs to return in person because that's their job that's an essential function of their job.