Companies Confounded by RTO Conflicts

RTO or “return to work” issues continue to plague employers.

Executives tend to want workers to come into the workplace, and employees collectively respond “Meh. We’ll see.”

Employers, I implore you to craft your RTO policies with enough flexibility to maintain that workplace culture you think you are cultivating by trying to mandate attendance in the physical workplace 2 or 3 days (or even 5 in some offices) per week. Neither productivity nor an inclusive company culture hinges primarily on face-time in non-public-facing organizations.

According to this New York Times article, workplaces attempting to decide how many days employees must be in the office face the practical challenge of trying to track or enforce attendance.

RTO must be done thoughtfully and holistically, accounting for a myriad of factors, including (but not limited to, naturally) industry, size, what state the office is in, mask planning (will you require them or not? If not, how will you deal with the objectors?) and federal, state, and local law, including discrimination concerns and COVID-19 guidance.

RTO and hybrid workspaces will differ in every workplace.

“Many companies have held firm to their RTO expectations even as Covid rates spike,” says the NYT.

I would caution company leaders to take a step back and examine their RTO expectations.

Has productivity and/or engagement actually decreased? If productivity and culture are truly suffering, is the lack of face-time truly the culprit?

Managers Gotta Manage

A rigid RTO plan should not substitute actual management of employees.

Do managers require daily check-ins?

Are they holding weekly or bi-weekly 1:1s?

Are your managers documenting employee performance or conduct—especially attendance— concerns?

Do they know how to recognize requests for reasonable accommodations? Especially when an employee informs an employer about a COVID diagnosis and/or long-haul COVID symptoms.

These managerial tasks do not magically disappear when people physically come into work.

That said, I see managers struggling to meet the tasks implicit in managing a hybrid team, including documenting problems. If an employee issue =is not documented, it’s like it did not happen. Whether we’re talking about poor performance, attendance, tardiness, KPIs, or following company policies, a talking-to is not enough. Supervisors and managers must document these conversations—and they should do so in real time.

Insisting on a rigid RTO plan is no substitute for improving supervisors’ managerial skills.

Photo by Surface on Unsplash

Ensure Your RTO Plan Does Not Create A “Disparate Impact”

A “disparate impact” occurs when a neutral policy or practice, in an actual, real life setting, has a disproportionate and discriminatory effect on a protected class.

Intent is not relevant; rather, it is the impact or effect that is critical.

The EEOC’s, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, provides clear guidance on this issue—an employer must ensure it is not treating older workers “less favorably” based on age when it allows other, comparable employees to work from home.

And, employers that allow employees with kids the flexibility to work from home or on another modified work schedule due to school or day-care closures caused by the COVID-19 pandemic (yay for flexibility!) must be careful not to treat employees differently “based on sex or other EEO-protected characteristics.”

The EEOC COVID-19 pandemic guidance provides this example:

For example, under Title VII, female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caretaking responsibilities for children.

Consider Caregiver Concerns

Employers seeking to mandate RTO plans must consider how these plans impact caregivers.

Recently, the U.S. Equal Employment Opportunity Commission shared guidance for employers to avoid caregiver discrimination issues for employees with caregiver responsibilities. The EEOC included a new section on caregivers/family responsibilities in its ongoing COVID-19 FAQ, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other “EO Laws.” There’s even a video explanation in  English and Spanish.

The EEOC’s guidance focuses on the deleterious effect of stereotyping—especially outdated stereotypes.

Here’s a common example: criticizing or ridiculing male employees for seeking to perform, or performing, caregiving duties, such as taking leave to care for a child who is quarantining after potential COVID-19 exposure, or limiting overtime or overnight travel, based on gender stereotypes of men as breadwinners and women as caretakers.

Another example is failing to assign female caregivers demanding or high-profile projects that increase the employee’s advancement potential but requires overtime or travel.

Or reassigning such projects from female caregivers based on the assumption that such actions will make it easier for female employees to juggle work and personal obligations, or based on the belief that female caregivers cannot or would prefer not to work extra hours or be away from their families if a family member is infected with or exposed to COVID-19.

Check out the EEOC’s caregiver discrimination information in this policy guidance, associated fact sheet, and employer best practices document. 

Include Mental Health Support in RTO Plans

Employers seeking momentum for workers to return to the office may want to consider what kind of accommodations they can provide to help ease and prevent mental health challenges. In How to Be a Mental Health Ally, advocate and author Katherine Ponte wrote:

Allies and leaders should lobby for and support office accommodations that can benefit all employees by helping prevent mental health challenges and mitigating workplace stressors that can worsen mental health. Some easy and low-cost examples … include offering late starts (many psychiatric medications can be sedating), breaks to attend medical appointments, flextime, quiet workspaces, office psychiatric service dogs (or emotional support animals), remote work, and part-time work.

Companies can support mental health at work in so many ways, as I wrote about in March when I told you about the DOL toolkit and the “4 A’s” of a mental health-friendly workplace.

Employer Takeaways

Look, I’m not saying, don’t open your offices back up—far from it! I’m saying return to the office mindfully, empathetically and with flexibility and an eye on these potential discrimination issues. Consider the following:

  • Create more flexible schedules, including part-time and job-sharing options;
  • Update your policies on travel, leaves of absences, attendance, etc., and, and this is critical, enforce your policies. Companies that maintain outdated policies or ones they do not enforce open themselves up to discrimination claims when said policies are enforced inconsistently;
  • Talk to your employees. Pay attention to this who are parents and caregivers to learn what would help them best;
  • Train your managers to document performance and engagement issues as they occur. All of them. Work with supervisors so that they can recognize requests for accommodations;
  • And, along the same lines, clear, frequent communications with your workforce. Provide accurate, recent information from trusted sources like the CDC, your state Department of Health, or your friendly, outside employment counsel (:-));
  • Ensure you have a trained HR team.

Flexibility is key. The workplace as we knew it needs a bit of facelift instead of mandatory face-time.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.