Employers More Flexible With Remote Work, Survey Shows

By Alexis Shanes
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Law360 (June 3, 2021, 4:49 PM EDT) -- More than half of employers have had some or none of their staff return to the office even as the COVID-19 pandemic begins to abate, and many businesses say they'll accept a broader range of justifications for work-from-home arrangements going forward, according to a Jackson Lewis PC survey released Thursday.

Only 8% of more than 400 survey respondents said all their employees had returned to the workplace, while 59% said very few or none had given up their remote work arrangements.

However, while employers overwhelmingly expect increases in the number of employees whose commutes are virtual, they're split on who is allowed to continue working from home.

Slightly more than 30% of employers said they would allow employees to work from home for any reason, including fear of being in a shared office space, but a nearly equal portion said they'd permit remote work only when it's required by law, for example as an accommodation under the Americans with Disabilities Act.

And nearly 40% said medical reasons could justify remote work, while just under a quarter reported the same for child and family care duties.

"This actually showed me that employers are being much more flexible than they would have been pre-COVID," said Patricia Pryor, a Jackson Lewis partner and litigation manager for the firm's Ohio and Kentucky offices, who co-authored the study.

The survey, which asks how the pandemic has redefined the workplace, took the temperature of return-to-work plans at 434 employers. Most responded through legal, human resources and C-suite employees.

The employers ranged in size from fewer than 50 employees to more than 10,000. The survey was conducted May 10 to 20, Pryor told Law360 on Thursday.

"I wasn't necessarily surprised by any of it," she said of the results. "It was in line with what I'm seeing directly from clients or from other polls."

Employers are largely planning for a more permanent hybrid workplace model, and only 4% of the respondents said they expected to go fully remote, according to the survey.

The results revealed that vaccination levels will have little bearing on when employers implement their return-to-work plans, if they haven't already. Roughly half of the respondents said they expected to move forward with those proposals within the next one to three months.

Around half of employers are also laying groundwork for different return-to-work protocols for different groups of workers. Others are using a single approach for all employees, and nearly a quarter aren't sure whether they want to distinguish among groups.

Moreover, whether employees return to work is overwhelmingly dictated by the specifics of their jobs or their voluntary decisions, the survey found.

Employers are using a wide range of procedures to draw employees back to the office. More than a quarter plan a full-time return to the workplace by employees but are using a staggered approach, while 15% have a set deadline for resuming in-person work.

A few others are encouraging workers to return voluntarily, but they're divided about whether to set a definite, mandatory return date down the road.

The survey also affirms earlier findings from similar studies that workers are eschewing vaccine mandates and incentives.

Nearly half of the Jackson Lewis survey respondents said they weren't offering financial or benefits inducements to encourage workers to get the shot.

Half also said they're not going to require vaccinations, either because of associated legal risks or employee relations issues. Only 2% will require the jab, while 5% will require it — or at least consider doing so — only for employees returning to the workplace.

Interest in vaccine-related return-to-work requirements has "ebbed and flowed" during the past few months, Pryor said.

For instance, there was increased interest in mandates after the U.S. Equal Employment Opportunity Commission released May guidance saying employers can require some workers to get the shot, but employers stepped back when they took a harder look at that possibility.

"As soon as they start thinking about it, they realize there's legal risks," Pryor said.

"The biggest thing is that there's not a one-size-fits-all approach," she added. "It depends on the company's own needs, the culture and a variety of other factors. There's lots of ways to successfully return to the workplace."

--Editing by Robert Rudinger.

For a reprint of this article, please contact reprints@law360.com.

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