The Future of Remote Work Post Pandemic
For many employers, plans to return to in-person work were rolled out in the summer of 2021 then delayed as the Delta and then the Omicron variants swept Massachusetts. According to a Gallup survey, in December 2021, 26% of full time employees were still working remotely.
Now, as COVID 19 numbers continue to go down, employees are being called back to in-person work. This is not welcome news to everyone, particularly those who have gotten used to significant savings in time and expenses by giving up their daily commute.
Now, as COVID 19 numbers continue to go down, employees are being called back to in-person work. This is not welcome news to everyone, particularly those who have gotten used to significant savings in time and expenses by giving up their daily commute.
Do You Have a Right to Work From home?For the most part, no. As part of the at will employment rules, employers have broad discretion to change the terms of employment. That applies to compensation as well as the details of the work environment.
There are other reasons, however, for employers to consider the remote work proposition for people who have been successfully doing their jobs "out of office" for the last two years. One is simply employee retention. The employer may have the right to call you back to work, but you also have the right to look for a different job with more flexibility. Another is cost reduction. If a company can reduce the amount of physical space it leases and maintains because a portion of its workforce will no longer need designated space, there can be substantial savings. Employees might also accept some reduction in compensation in exchange for the savings and convenience associated with remote work. Finally, institutionalizing remote work, in whole or in part, vastly expands the talent pool a company can draw from when recruiting new employees, because they could be literally anywhere. What if You Were Promised Permanent Remote Work?Because of the duration of the pandemic, there are people who started jobs after March 2020 and have never worked in person for their current employer. Some may have been told the remote work was temporary, but others were promised that they could count on continuing to work remotely after the pandemic.
Can you enforce this promise? The answer is maybe, and most likely only under limited circumstances. Whether you look at the promise as a binding contract on its own, or claim that you gave up something in reliance on the promise (which you probably did), both theories tend to run up against the employment at will doctrine. In many cases courts have held that the employer's right to change terms and conditions of employment makes it unreasonable to rely on a promise that anything will stay the same. There may be some agreements or promises that are specific enough to be enforceable. There may also be circumstances where it would be considered reasonable to rely on a remote work promise despite the employment at will doctrine. An employment lawyer can help you assess your particular situation if you need to enforce a work from home promise. |
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Remote Work as a Reasonable Accommodation
The pandemic may have changed one thing in the legal landscape regarding remote work, and that is how remote work fits into an analysis of whether an accommodation for an employee with a disability or religious objection is "reasonable."
Under state and federal laws that existed long before COVID, an employee with a disability could request a reasonable accommodation. If that employee could perform the essential functions of the job with an accommodation, the employer was (and is) required to engage in a good faith interactive dialogue with the employee to see if there is a reasonable accommodation available.
The key word in this analysis is "reasonable." The employer is not required to incur undue expense or burden in order to accommodate an employee.
Pre-pandemic, courts were split on whether remote working was a reasonable accommodations. Much of the debate centered on whether in person presence was an "essential function" of the jobs in question. Now that many employees have been performing their jobs remotely for extended periods of time (in some cases a full two years), it will be more difficult for employers to insist that physical presence is an :essential function" of those jobs.
A similar analysis applies to employees who have a religious objection to a job requirement, such as the COVID vaccine. In that case the employer's obligation is to reasonably accommodate that objection. In the case of remote work, the employer would have to show that it would create a burden that was more than "de minimus." though this is an easier test to meet for the employer than a disability accommodation, the precedent of remote work could also make it more difficult (though not impossible) for the employer to argue that accommodating a religious objection through remote work would create a real burden for the employer.
Under state and federal laws that existed long before COVID, an employee with a disability could request a reasonable accommodation. If that employee could perform the essential functions of the job with an accommodation, the employer was (and is) required to engage in a good faith interactive dialogue with the employee to see if there is a reasonable accommodation available.
The key word in this analysis is "reasonable." The employer is not required to incur undue expense or burden in order to accommodate an employee.
Pre-pandemic, courts were split on whether remote working was a reasonable accommodations. Much of the debate centered on whether in person presence was an "essential function" of the jobs in question. Now that many employees have been performing their jobs remotely for extended periods of time (in some cases a full two years), it will be more difficult for employers to insist that physical presence is an :essential function" of those jobs.
A similar analysis applies to employees who have a religious objection to a job requirement, such as the COVID vaccine. In that case the employer's obligation is to reasonably accommodate that objection. In the case of remote work, the employer would have to show that it would create a burden that was more than "de minimus." though this is an easier test to meet for the employer than a disability accommodation, the precedent of remote work could also make it more difficult (though not impossible) for the employer to argue that accommodating a religious objection through remote work would create a real burden for the employer.
How We Can Help
We can help you understand your rights and your options if you are being required to return to in-person work. You can use the button below to schedule a call back from a member of our team, give us a call at 781-784-2322, or fill out our web form to let us know a little more about your situation.
