Creating effective policies in a hybrid work environment is the starting point for a successful model to balance legal risks with practical considerations and business needs.
Organizations may be wondering how to reevaluate and recalibrate policies covering where and when employees can work as they balance the goals of creating positive impacts on recruitment and retention, as well as providing opportunities to support a more diverse workforce, while taking a step in reducing the risk of legal claims.
Today, knowledge workers, who make up the bulk of the workforce seeking flexible work arrangements, continue to demand hybrid or remote arrangements. Policies that outline which positions are eligible for hybrid or remote status, and under what circumstances, are necessary to ensure consistency and manage expectations.
The mechanics of the hybrid work environment will continue to evolve with technology and employment needs. Workplace policies need to evolve as well.
Formalized hybrid work environments can support identifying diverse employees and job candidates.
When evaluating policies and procedures, employers must consider how each segment of the workforce may be impacted and whether adjustments should be made.
Who Benefits Most?
Research has shown that people of color among other members of marginalized communities tend to benefit most from hybrid work environments. Flexible work arrangements expand opportunities in recruitment, allowing for a more diverse candidate pool. When obstacles such as transportation logistics, commute cost and time, increased childcare costs and rigid schedules are eliminated, employers may gain the benefit of more qualified candidates from populations that likely would not have felt able to apply when facing those barriers.
Caregivers
During the height of the COVID-19 pandemic, caregivers (a group made up statistically of more women than men) faced unprecedented expectations in their homelives while also juggling their employment responsibilities. The flexibility that remote work provided for caregivers to perform these tasks while successfully continuing to work made it possible to continue full-time employment, to stay on track with career trajectory and to bring in a full income. All of this would have been much more difficult if these caregivers had been required to perform full-time, in-person work.
Despite the flexibility that remote work gives caregivers, caregiver discrimination in the workplace (often intertwined with gender discrimination, race discrimination or both) can be a difficult hurdle for employees to overcome. The Equal Employment Opportunity Commission (EEOC) issued guidance in early 2022 on this issue. The guidance reminded employers that, even if well-intended, treating employees differently based on a protected status is discriminatory and illegal. For example, not promoting a working mother to a position that requires travel based on an assumption of her childcare obligations would be discriminatory if the working mother was the best qualified employee for that position.
Employees With Disabilities
When the barrier of the commute is eliminated during the COVID-19 pandemic, employees with disabilities were able to successfully find work that, before the COVID-19 pandemic, may have been off limits to them. The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to qualified individuals with a disability to successfully perform the essential functions of the job. The huge and seemingly overnight conversion of jobs from in-person to remote has helped even the playing field for these employees.
Persons of Color
Persons of color have also reported benefiting from remote and hybrid work policies where in-person interactions can be lessened. Employees report experiencing fewer microaggressions when they can avoid in-person interactions with colleagues and supervisors. Microaggressions refer to speech and actions that, regardless of intention, send minimizing and devaluing messages. Employees of color have reported fewer instances where their appearance, culture or competency have been questioned in remote work environments and, as a result, they also report increasing preferences to remain in remote work environments.
Key legal issues emerging from hybrid workplaces, including the need for a strategic approach to accommodation requests, essential job functions, performance management and productivity measures.
A regular reevaluation of job descriptions has always been important. It has taken on a renewed significance as the workplace continues to evolve. The ADA and many state laws require reasonable accommodations that will allow a qualified individual with a disability to perform the essential functions of the job. The evolution of work location as an essential job function has complicated the accommodation process.
Navigating issues relating to accommodations due to disability continues to pose challenges for employers as employees increasingly request to work on a hybrid or remote basis as an accommodation. Determining the essential functions of a position is the critical first step in evaluating when such accommodations are reasonable and when there is a legal basis to deny the request.
Employers that chose to designate only some positions as hybrid or remote-eligible should base these determinations on the essential-function analysis. As employers increasingly require that employees meet performance standards, productivity metrics or other requirements to remain in “good standing” as a condition precedent to work on a hybrid or remote basis, care should be taken to ensure these requirements are consistent with business objectives. To the extent the requirements are based on subjective assessments, employers run the risk of disparate treatment claims.
Accommodation requests to work from home more frequently to address stress and mental illness issues are on the rise. Employers must evaluate these requests in the same way they evaluate other requests for accommodation and understand that they must go through the process and analysis under the ADA. When these types of requests are granted, employers are finding it more complicated to manage performance.
A concern here is potential retaliation claims should there be any adverse employment action following the request, either for the request for the accommodation itself or for the disclosure of any associated health issue, whether mental or physical. This is another example of why it is vital for employers to establish a consistent method for monitoring performance and ensuring that an employee who has requested additional work-from-home days is not singled out or treated differently from other employees.
Regardless of accommodation issues or the analysis of essential job functions, employers should articulate policy changes in a way that establishes the business justifications for why in-person attendance is required. While collaboration, oversight and other factors that require presence in the workplace are often essential job functions, employers must be prepared for challenges as this issue continues to be litigated. Continuous and cost-effective improvements to technology, along with the experience of having worked remotely for a period of time, will remain sources of challenges to employer policies.
A hybrid work environment complicates the issue of proximity bias, because so much of the workforce is geographically divided. These issues are not insurmountable. While a manager may have no discriminatory motive, the employees working in-person may benefit from the relationship developed with the manager. Employers must ensure access to equal employment opportunities by providing the tools necessary for recognizing and mitigating the impact of proximity bias.
Creating a thoughtful and effective policy takes time and the impact of that policy must be constantly monitored and evaluated. When it seems like the policy is not working as expected, it may be difficult to recalibrate and revise it. However, the consequences of not recalibrating when needed may result in significant legal and cultural consequences for the organization. Now it is time to monitor the policy in action. Ask “What is working? What needs adjusting?” Repeat.
Authors: Felice B. Ekelman, Principal; Kimya S.P. Johnson, Chief Diversity, Equity & Inclusion Officer and Principal; Tasos C. Paindiris, Principal (Jackson Lewis)
