Episode 152: Considerations, Best Practices for Returning to In-Person Work Arrangements

Welcome to the Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, the Labor Law Helpline Manager and Employment Law Council with the California Chamber of Commerce. Today we're going to revisit a topic that we have discussed before here on the podcast, the return to in person work environments. Recently we have seen Cal OSHA revise their emergency temporary workplace standards for COVID 19 for a third and likely final time. These rules will be in place through the end of 2022, and they provide ample clarity now for our employers to make plans for moving forward with bringing their remote employees back, whether that's full time back or some kind of hybrid situation. And in fact, many surveys are showing currently that the hybrid model is really where employees want to see their work time. They want to be in the office some days and they want to be at home other days. And that's really been the preferred arrangement for employees as the pandemic's drawn on. I think employees like the flexibility of being able to work from home, but there's always some job responsibilities that just get done better when we're able to be in the office, we're able to interact face to face, or we don't have those added distractions from being home. No matter the model that employers choose, though, as we move forward through this more stable pandemic period, there are certain considerations that employers must bear in mind. And there really is no one better to join me for this podcast than my colleague and one of Cal Chamber's Labor Law helpline advisors, Ellen Savage. Welcome back, Ellen.

Hey, thanks Matt. Glad to be back. We always have a good time here.

We sure do. And I know you and I have gotten countless calls over the last two plus years from members throughout the pandemic about legal issues, about returning people to work, and the scope of those conversations that we have with our members end up being a lot broader than I think employers realize. They come to us with one question and it explodes into 10 because there's so much to keep in mind here. So there's a lot that we need to consider and a lot of different topics that we really talk about with members. Isn't that right, Ellen?

Oh, yeah, yeah.

So let's jump into the various considerations that employers need to keep in mind depending on whatever their work model is. And let's start with one that's been kind of fascinating to me, and that's the employees moved out of the area. So the first thing that should come to mind with our employers is whether they are even near the work sites anymore. We've gotten some kind of shocking calls from members where they all of a sudden learn that their employee that used to report to this work site 100% of the time before the pandemic now all of a sudden doesn't live in the area or doesn't live in the state or even has left the country altogether. Ellen, you know, what do employers need to know about these suddenly relocated employees? I mean, can they even require them to come back at this point if they no longer live here?

Well, usually the first question that we get asked about is what do I do about taxes for them? And of course, we don't do tax laws. But what they don't often realize is that there's a lot more to it than taxes. We start talking about expenses. We start talking about what to do when the person needs to come back into the office, whether that employer has even thought about the fact that they're now a multi state or even a multinational employer. Because we've got to pay attention to the laws in the jurisdiction where the employee is working. Now.

Can we tell an employee, maybe we even knew they moved out of the area? Okay, I said it was fine if you wanted to move to Idaho, except now we're all coming back to the office, so you need to be back on Monday.

That's a tough situation. I don't know if we can do that or not.

Yeah. And I think it's a practical reality for employers when we're starting to think about these concepts of what the work life balance thing is going to look like going forward is what can we even do in the first place with our employees? Do we want to really bring the hammer down on these employees that, you know, frankly, we can't replace that easily during the pandemic as it is with the great resignation. But also, you know, do we want to lose this valuable talent that we have that, you know, like you said, we allowed them to move out of state, now they're not here. Are we going to require them to come in on Monday? It's a real good question. But I think that's really the first threshold that employers need to realize is where the heck is everybody at this point when we're trying to think about when we're bringing people back, back? So let's assume our employees are still in the area. Right. Some are going to be reluctant to return for a variety of reasons. We've heard this a lot. First one that comes up really often for me, at least on the helpline was, I just don't want to Come back. I'm comfortable at home. I don't want to wear regular pants anymore. And I, I, I can do my job, you know, remotely. I've been able to do it for two years. Why are you making me come back? What can an employer do with that particular employee in that particular situation?

Well, if it's just I prefer not to come back. I don't want to wear what we call in my house hard pants anymore. I don't want to put on shoes. The legal answer to that question, honestly, is too bad. I mean, I hate to put it that way. If you want to keep good employees, if you want to see if you can adopt some type of hybrid model that might make them happy, I'm all for that. But legally, the answer is, I'll see you back in the office on Monday. If it's just I don't want to come in.

Yeah. And I think that's important to know that even though we created this arrangement, it doesn't automatically create an arrangement we need to follow through indefinitely into the future. Right. We all know this arrangement was born out of necessity and now kind of convenience and what we've just been doing for a couple of years. But as you said, this is not really a legal question. So what works operationally for us? Okay, step two. The employee comes to us and says, I'm happy to return back to the office, but I have ongoing childcare issues. I'm not going to be able to do it. What do the employers do there?

So I totally feel for parents right now. There is so much juggling going on, and getting childcare is more and more difficult. But unfortunately, same answer, too bad. Be back in the office on Monday. Again, you want to keep good employees. You want to be as flexible as you can. But allowing people to work from home because they have childcare issues opens the door to the next employee who says, well, I don't want to leave my pandemic puppy at home alone, or my elderly parents need me. And again, I feel for all of those things. We don't want puppy chewing up the couch while you're at work. But on the other hand.

You have the right to have those people come back to work. And do you really want your employee who's working at home taking care of his or her three small children and the pandemic puppy and grandma and also trying to work? That's too much to juggle?

Yeah, it's tough. And then you get into issues of equity that often get raised, which is, we let people work from home. Because they have childcare issues. But what about the pandemic puppy? There's no protected class for owning a dog outside of emotional support animals for disabilities. But the. They're gonna feel slighted if you allow one person to work from home because they happen to have children and this person feels like their dog is their child. And you're saying, I can't let you work from home because we just don't care that much about it. So when you're thinking about these kind of policies where you don't have a legal obligation to do it, it's always best to see what's that precedent we're setting, what is gonna look equitable for our employers. So let's get into real the meat and potatoes of where employers need to tread lightly, and that is, Ellen, I am immunocompromised or I live with somebody who is immunocompromised. I cannot come back into the office because I fear contracting COVID 19 in that workspace. What do employers need to do?

So we really need to tear that question into two big chunks here, Matthew. The first one is the employee who's immunocompromised. Because now we've got an employee who is clearly going to be protected under the disability accommodation laws, the Americans with Disabilities Act, California's Fair Employment and Housing act, which is honestly even more stringent than the ada. We need to decide, can that person perform their essential job functions at home? The EEOC Equal Employment Opportunity Commission has come out with some guidance for employers that has flat out said, if that person was able to do their job and do it fine at home during the pandemic when your office was closed, we can use that as evidence to show that there's no reason that it's an undue hardship for them to still work at home. The person who's immunocompromised definitely has a much better standing than the second chunk of this question, which is, I live with someone who's immunocompromised because employers don't have a legal obligation to accommodate the disability of a family member or a household member, only of the employee.

Okay, excellent. We've now gotten to our situation where we figured out our model, right? We're going to go to a hybrid, Ellen, and we got some days in the office, some days out of the office. Members have asked me, and I know they've asked you as well, whether that now makes their commutes into the office somehow compensable or in what circumstances might we have to pay for travel Time pay where we didn't used to in the past because of this hybrid arrangement. What do we look at from a legal landscape?

ELLEN well, Matt, that's a $64,000 question right now. The labor commissioner has not given us any guidance in terms of how this remote work or hybrid work affects the wage and hour laws or how the wage and hour laws affect the remote work.

Really, what it comes down to is, is this a work from home situation where the employer has said, I want you to work from home. Maybe we're trying to social distance the office. I've talked to a lot of employers who've given up their office space during the pandemic and told people, you just do work from home now versus our employee who just says, well, I have an office, but I want to work at home in my bunny slippers. Is that okay with you, Mr. Or Mrs. Employer? So really what it comes down to is, do I have a desk, a computer, a phone at work that I could be at, but I'm just preferring to work from home? And if so, then if you ask me to come into work some days, you probably don't have to pay me my commute time because that's still my normal workplace. My work from home is for my convenience.

This gets even more complicated when, like you said earlier, we've got employees who are now working from Idaho, and now we say, okay, Matt, I want you to come in for our annual conference for the week. Well, now I'm working remotely. Do you have to pay my airfare, my hotel all the time for me to travel when I'm living and working in Idaho? Because I prefer it. And we just don't know the answer to those questions.

Yeah, and this really dovetails then into what kind of costs we reimburse our employees for in this kind of model. You know, recently it's been picked up that there's an explosion of litigation and lawsuits around the idea of expense reimbursement. And you know, the cliff notes here for everybody is California has Labor code section 2802. All of our expense reimbursement rules really derive from this one super short statute that we'll talk to here. What we're seeing with these claims is that employees are filing it because they've had unreimbursed expenses from the ordinary, like office supplies, or they were required to use their personal cell phone usage in the employees. Employer didn't reimburse for that to some pretty crazy outlandish claims like the employee has lost business income because instead of using their home office to work for you employer. They could have rented out the space to somebody else to use it as their home office for a different employer. And now the employee has lost business income, and the employer needs to help compensate for that. I don't know where that claim is going, but I've seen it a number of times now. So what do employers really need to be mindful of, no matter what model that I pick going forward with regards to expense reimbursements?

Well, Matt, I would say that's probably the number one question that we've been asked so far about remote work is what expenses do I have to reimburse and how much for those expenses. And I think again, it comes down to the question of whether the employee is working from home because it is, quote, necessary within the meaning of California's expense reimbursement law, or whether it's just preferred by the employee. If we dig into labor code section 2802, which I think I've said a thousand times in the last couple of weeks, that labor codes have been a biggie. Labor code section 2802, if we parse it down and take all the legalese out, says that the employer has to cover all necessary expenses that the employee has in doing their job. And the code goes on to say that the term necessary expenditures means all reasonable costs. So this actually became a really big issue long before remote work, when employers suddenly started requiring employees to use their cell phones for work. And there was a big court case that said, look, you employers have to provide the equipment to do the job. And if you're going to make the employee use their own equipment, like their cell phone, then you're going to have to pay a portion of their bill. Otherwise you're getting free stuff. So the court said that the whole purpose of 2802 is to keep employers from passing their operating costs onto their employees. Makes total sense. But the court also said in that case, and this was the Cochran vs Schwann case from mid 2019s or something like that, mid 2000 teens, the court also said the important part is that the employer can consider not only the actual expenses, but also whether each expense was necessary. So if the employee's choosing to work from home in their bunny slippers, I still got a desk at work, I still got a phone at work. I still have everything I need at work. Then are those expenses actually necessary? If they're not, it's for the employee's convenience. Employer probably doesn't have to pay those expenses. But in the case of the employer, again, who's cut back on office space or wants social distancing now, maybe those expenses are necessary. Internet, phone bills, printer. What about my air conditioning, Matt, it's 91 here in Sacramento today. I got to run my air conditioning all day long. If you're going to make me work from home, I want you to pay part of my electric bill. I've even had employers say that employees have told them, hey, if I were in the office, I'd be using your toilet paper. So I want you to buy me a case of toilet paper from Costco. I don't know how far this goes. It's a slippery slope. And I guess we'll wait and see what some of these lawsuits say.

Yeah, absolutely. And I think something to take away at the conclusion of this discussion really, is that statute has been interpreted broadly at every step of the way. And so do these claims, such as toilet paper or air conditioning or lost business expenses, actually have merit? The answer really is possibly. And so if you presented with something like this and it's not something you want to reimburse, really, our suggestion at the end of the day is, you know, pick up the phone, call your friendly neighborhood Employment Law Council. They'll be happy to talk with you about this for a little bit and what the risks and liabilities may be if you choose not to reimburse it. But this was something I think we all expected at the outset of the pandemic when we saw the calls coming in that we're going to see an explosion of litigation in this area, and it's happening now. And so employers need to make sure they put this on their radar to ensure that they minimize the risk in this area because it is so fuzzy and it's so broad. Moving in then to the situations where the employees come back into the office. Right. Like you said, hard pants, I find such a fantastic term. I love it. I, too, also, you know, don't like wearing formal clothes like many of us do. So, you know, I've enjoyed working from home and the ability to wear what I want to wear when I'm working. But our workers are coming back into the workplace. And so with the being accustomed to their casual dress style, some employees may start to come back into the workplace in a way that's not professional, not a way that we expected pre pandemic. So, you know, can an employer actually really still continue to enforce a dress code in office, even though they allow their workers to work from home a majority of the time? And we don't have a dress code at home. So is there the ability to really still keep the dress code in place when we bring them back into the office?

You mean I can't wear my bunny slippers to the office tomorrow, Matt?

I don't know. You'll have to talk with human resources about that one. Maybe.

So the answer to the question of whether we can continue to enforce the dress code is. You bet. Absolutely. Even though I loved wearing the pajamas or whatever at home during the pandemic, employers absolutely have the right to continue to have whatever dress code they want. Given the fact that the world has become something of a more casual place due to the time working from home, employers might want to consider whether they do want to relax their dress code. Keep workers happy, you know, let them be a little bit more casual and comfortable. But it's really up to the employer. You know, you can still require the suit and tie if you want.

Excellent. I think that's important to note. And again, as we've talked about with policies all the time, uniform, right? Be uniform. You're gender neutral with your dress codes, of course, but you're applying it consistently. Right. You don't let your favorite employee come in in the bunny slippers and then really hammer your not so favorite employee for wearing bunny slippers, as you allowed with the other one. So to close out today, I have a couple interesting hair related questions that I received on the helpline through this. I thought it'd be fun to close with these things. First question we had, an employee was fully remote until a few weeks ago. The employer decided to have the employee return on a hybrid schedule in a position that has some client interaction. Ellen. So, you know, we're seeing clients professionalism, obviously an important aspect of that. The employee had long hair that was styled into a bun. The employee was male, and the employer felt that that violated their dress code for male hairstyles because it was too outlandish. Right. This male with the long hair fashioned into a bunch of at the top of their hair. It's ridiculous. Doesn't look professional. Is there an issue there with that kind of dress code?

You know, we don't have any litigation yet on the man bun.

So we would really want to say, is that part of our dress code? We don't necessarily have to be entirely gender neutral when it comes to a dress code, but we would say, you know, is that something that is professional office grooming or attire these days?

It may well be, yeah, I think so. Times are really changing around those styles. So let's say that that's an okay dress code. Right. And the employer wants to enforce it. But the employee, which is what happened in this call, came back and asked for a reasonable accommodation under our disability rules to maintain the man bun because it provided him emotional support. What do you think, Ellen?

An emotional support man bun. Matt, I think you have the best helpline question of all time. You are definitely the winner here. Emotional support, man bun. I don't know. What do you think?

Yeah, I mean, with all disabilities, we've got to really look into this and make sure we've got medical certifications that, you know the accommodation is going to help them perform the essential function of the job. Treat it like a regular accommodation request. If you would like to deny it, as always, consult with legal counsel. But once you get into those situations where they're asking for reasonable accommodations due to emotional support, we always have to figure out, is there a disability there first, or does this just make him comfortable, make him feel good? Because that goes. You know, we kind of laugh about this one, but I got a second one. And this happened with facial hair. So around the time mask mandates were lifted, an employer had a no facial hair policy for anybody. So no matter who you were, you couldn't have facial hair unless you needed a particular accommodation due to religious beliefs. Great. Sounds good. On paper, the employee that we're talking about developed a really fancy mustache that was always hidden behind a mask at work until the mask came off and the employer said, that's facial hair. It's got to go. He comes back with a doctor's note that just said, please allow this employee to maintain his mustache for his emotional well being. That was the exact language of the doctor's note. What do you think? Or what would you tell the employer in the circumstance about what to do, what to look out for?

Well, okay, so this is not for a religious reason. This is emotional well being. So is this an ADA claim, Matt? So imagine our employee, Mr. Mustachio, we're going to call him, had an actual disability. Let's imagine he had depression and he needed to have his mustache for emotional well being.

Facial hair has been a source of multiple lawsuits related to disabilities. Believe it or not, African American men get a. A condition called. And let's see if I can get this right, Matt. Pseudofolliculitis barbae. That's impressive. I know.

That's impressive.

Should have been a doctor. Anyway.

So this condition causes ingrown hairs and it actually has been two lawsuits, one dealing with pizza delivery people. And the employer wanted everybody clean shaven. And a more recent case dealing with.

Firefighters and they had to wear a respirator so they needed to be clean shaven. In those cases, disability and facial hair were a big issue. I'm not aware of any cases yet dealing with facial hair related to mental illness or mental disabilities. I would encourage the employer to say, okay, let's look at what Mr. Moustachio's job is. Is he customer facing? What's the industry? Is it appropriate dress and grooming for industry?

I would have a really, really tough time if I'm a plaintiff's attorney winning this case. I think the employer is on pretty solid footing saying no mustache. But California courts always surprise me.

Absolutely. And as always, if it's ambiguous or we're really not sure what we do, give us a call on the helpline. You know, Ellen and I will walk you through it. If you want real specific legal advice, pick up that phone, talk to Employment Law Council and they'll help walk you through exactly. Exactly the same thing. Ellen, it was such a treat having you with me today to discuss these real world examples of what employers are working through with hybrid remote work environments. So thank you for joining me today.

Thank you, Matt, it's been great.

And thank you listeners for joining this discussion on the workplace. Please comment, share and subscribe to Cal Chambers podcast by visiting calchamber dot.