May 2024 Volume 6

OPERATIONS & MANAGEMENT

What is Going on With Remote Work? By Johanna Fabrizio Parker

Hybrid schedules also have potential legal ramifications.

If you follow the business news, you see that remote work is still a topic of debate. Is it going away? Is it here to stay? There are lots of experts out there who purport to predict the future. I do not claim to be one of them. But I do see and address this issue regularly, and the following are my key take-aways. (Of course, this is general information and not legal advice. If you have legal questions, please seek counsel). Employees want remote work, or at least the option for it. There can be no dispute that the pandemic fundamentally altered work life. Remote work (whether total or hybrid, and more on that below) is now expected in many workplaces. And, as with all benefits (or perceived benefits), it is much easier for an employer to add versus pull back. Employees are making their work decisions – whether to join or stay at a company – based on the availability of remote work. So, for those employers in a competition for talent, this is a very real factor to manage. Remote work has its practical challenges. To start, I like to work remotely. But even I have to admit that it’s certainly not the same as when everyone was in the office. You do lose something in the lack of person-to-person interaction, whether it’s training, informal learning, or even the skill of finding solutions (versus trading multiple electronic messages). I have not seen or experienced a true proxy to address these lost opportunities. What I have seen is that an employer needs to be purposeful in trying to address these issues. Solutions are not going to happen organically. Maybe that’s a specific training program, or a mentorship assign ment. Maybe it’s bi-weekly/monthly/quarterly in-person meetings to talk about what is (or is not) working for a particular team. The challenge, of course, is that even with the best of intentions, work is so busy that these types of additional things can and do fall to the bottom of the list. Hybrid schedules have been used as a potential “solution,” but they too have practical limitations. The key practical issue with hybrid schedules – at least from my perspective – is whether people are actually together at work. If you have hybrid schedules but groups are not there together or one group is, but another is not (so that employees still are on video meetings), the value of the hybrid schedule seems to be challenged. Also, employees who may not like the hybrid schedule can get even more critical of it when people are not present. Again, this can be addressed but only with specific efforts to do so, e.g., scheduling so that the entire team or key related parts of the team are there in the office and able to interact.

Under the Americans with Disabilities Act (ADA) and various state laws, an employer must provide reasonable accommodations for an individual with a disability unless doing so would impose an undue hardship on the business. There are a few really bright lines as to what is or is not (a) a reasonable accommodation, or (b) an undue hard ship. And the lines have become less distinct with the onset of remote work. Historically, if an employee requested that his/her disability required a work from home schedule, the employer would say – and a court often would agree – that regular in-person attendance was an essential function of the job and/or not requiring it would be an undue hardship. (Please understand that this is purposefully a very general conclusion; these evaluations must be made individually.) But with the pandemic and advent of regular work at home for so many industries, this “usual” outcome is far less certain. Hybrid schedules add another layer of uncertainty/difficulty in saying that in-person work is essential as the employer effectively has determined that employees do not need to be there every day to do their jobs. Remote/hybrid work also can create “us” versus “them” in your employees. Every company has its own culture. And from what I’ve seen and experienced, employers generally want all employees – regardless of job or level – to feel like they are part of the one team. Some jobs just cannot be done remotely. All production employees (and I would argue supervisors of these employees) need to be present at the facility to perform their job duties. But what about the support functions, e.g., human resources, finance, marketing, and/or even senior lead ership. These jobs may or may not need to be physically there, and in reference back to point No. 1, your talent may demand not to be. An employer has to recognize and address possible “us” versus “them” responses to these different expectations/benefits. While I don’t have specific empirical evidence, I do believe that – when labor has at least some of the bargaining power AND the job can be done remotely – some form of remote work is here to stay. I also believe that this is a new world of work, so to the extent that employers have created certain remote/hybrid structures, there is nothing to say that those have to stay “as is.” Rather, as we get further into this post-pandemic work world, we can (and should!) pivot and adjust. Johanna Fabrizio Parker Partner, Labor & Employment Benesch Friedlander Coplan & Aronoff LLP Phone: 216-363-4585 Email: JParker@beneschlaw.com

FIA MAGAZINE | MAY 2024 54