Your new COVID ERA workplace

Your Workplace in the COVID Era

We now all know or should know that the effects of the pandemic are far from temporary, even as many communities see their transmission rates dropping.  Even as the state continues to re-open.  The truth is our landscape is forever changed, including the workplace landscape. 

For professionals and white collar workers, remote work may be here to stay, at least into 2021.  For people who have to do their jobs in a physical location, the new practices and requirements about safety are likely to continue for a while.  All of these things have practical and legal implications for both employees and employers.

The New Remote Work Landscape

Those of us who can have been working without going into a physical office since at least March 2020.  It appears that this will continue well into 2021 if not longer.  Companies that have already announced indefinite work from home arrangements for at least some percentage of their employees include Facebook, Twitter, Square, Slack, Box, and Shopify.  A recent survey of 100 Massachusetts based companies found:

• 40% (17,000 Massachusetts employees) are still at fully remote status;
• 80% were anticipating employees continuing to work from home after Labor Day 2020;
• 61% were anticipating employees continuing to work from home at the beginning of 2021.

In addition to all of the practical realities of working from home- finding quiet space from children and pets and spouses, updating your technology, developing new work habits without the structure of an office environment- there are employment law implications as well.

When people are working remotely, it is common sense advice for the employer to establish clear guidelines for productive use of time and expected results.  As an employee, you too should be thinking about this.  In the physical office environment, you would be able to pick up on hints or signals if someone was not happy with your work product.  In a full remote situation, without clarity about expectations, you could be caught by surprise by an unfavorable review or even a termination.

Remote work, especially if some people are returning to the office and some are continuing to work from home, can raise employment discrimination issues as well.  How does the employer decide who continues to work remotely and who returns?  If the employees who continue to work remotely tend to skew female based on child care responsibilities, what happens when the next round of promotions passes these women over in favor of those who returned to the physical office? 

The same question applies if those who choose to stay home do so because of underlying health conditions.  A remote work arrangement could be seen as a reasonable accommodation for a disability.  However, if remote status results in long term job or career harm, the employee might have a claim for disability discrimination under state and federal law.

It is important as well to think about the privacy of your personal information and the protection of your employer's confidential information.  You may be working on your own laptop rather than the employer-provided desktop at the office.  This means you are running both your personal information and your job-related information through the same system. 
Or your employer may have provided you with a company laptop, and for convenience you are using it at home for both business and personal communications.  In either case, you should make sure you read and understand the policies your employer has about privacy and their right to search electronic devices.  These are often broader and more intrusive than many people realize, but important to understand before you expose your personal information.

The New Physical Work Landscape

A full return to a physical workplace creates many new complications for both employees and employers. 

First and foremost will be compliance with the various orders and advisories regarding COVID-19 safety.  The Commonwealth of Massachusetts has issued general safety standards applicable to all workplaces.  These standards address the level of occupancy allowed in a building, distancing requirements, face covering requirements and cleaning and sanitation.  There are also more specific standards for certain industries, which cover a broad spectrum of businesses that have re-opened or are re-opening.  If you are returning to work in a physical location, you should review these standards so you can know what to look for in your workplace.

Some employers are also instituting "temperature checks" to screen workers as they arrive at work for possible infection.  This is not something most employees ever had to contend with before COVID.  It is likely to feel intrusive, but is probably lawful.  There is a limit, however, to how much information about your health your employer can or should ask for, particularly if you have an underlying condition that might qualify as a disability or a perceived disability.

The new federal paid sick time rules have also caused some confusion in the context of re-opening.  The Families First Coronavirus Relief Act (""FFCRA") requires employers to provide up to two weeks of paid sick time for employees who either have COVID or are under government or medical orders to quarantine.  Massachusetts law also requires a certain amount of paid sick time if your employer has 11 or more employees.  If you are sent home as a result of a temperature screening at work, you most likely are entitled to be paid for that time, at least until you can get tested and receive the test results.

The same is true if you get a COVID test because you believe you have been exposed.  Many doctors will recommend that you quarantine at least until the results come in, and sometimes longer.  If the reason for the test is possible or likely exposure, this time should be covered as paid sick time.  However, some employers are having all employees in certain roles take a COVID test as a preventive screening measure.  It is not clear that time spent in quarantine awaiting results, even if on a doctor's orders, counts as paid COVID sick time, or that your job is protected if you stay out of work waiting for results.

If you are asked to return to a physical workplace and you have a medical condition that puts you at high risk for COVID complications, you may be able to request reasonable accommodations to keep you safe.  These could include working in a less populated area of the office, protective equipment such as plexiglass shields or N95 masks, or a staggered work schedule to avoid unnecessary contact with others.

If your concern is about a medically vulnerable family member at home, existing law does not provide the same protection.  This is because at present there is no legal basis to ask for an accommodation to protect someone other than you with a disability. 

Another consideration is what happens if you return to work and notice and report non-compliance with COVID safety guidance.  You may report to a manager that mask rules are not being enforced, or distance requirements not observed, or cleaning not being done as required.  This activity is not expressly protected under existing law, but may be considered by a court to be a form of "whistleblowing" that could protect you from retaliation.

Workplaces Without Borders

Right now, the discussion around remote work is focused on people adapting in their current employment relationships.  However, the longer employers operate in a fully or partially remote status, the more they may begin to think differently about how, and where, they hire new employees.  After all, if your local employees can be productive from a laptop in their house in Massachusetts, why not widen your recruiting net and look for talent anywhere else in the country, or even the world?

And from the employee's perspective, a remote work arrangement opens your own location possibilities wide open.  It may be possible to live in a community with a lower cost of living while still earning the compensation from your Boston area job.  It may even be possible to move to a different state, which may have cost of living and tax advantages.

Once the geographical boundaries of the employment relationship are blurred or even erased, new questions arise.  If you live in New Hampshire and work remotely for a Massachusetts company, are you entitled to the protection of the Massachusetts wage and hour laws?   Massachusetts discrimination law also includes protections that are not available under federal law or the laws of some other states.  This includes protection against discrimination based upon sexual orientation and gender identify. 

The analysis of which state's law to apply to an employment dispute is not always crystal clear.  Without an employment contract that specifies the governing law, a court will have to determine where the primary site of the relationship is.  If you are considering relocating to another state and working remotely, you should pay careful attention to any employment agreement you have signed, and specifically whether it states what law will apply to any dispute.  It would also be wise to review the applicable employment laws of the state you are considering moving to, so you know what protections you might be giving up.

How We Can Help

If you have concerns about re-opening in your workplace, or just want to better understand your rights and obligations, our employment law team can help.  You can call us at (781) 784-2322 to schedule a free consultation, or click the button below to schedule a call back from a member of our team.

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