Employment changes seen likely to outlast pandemic

John Henderson, an administrative law judge with the U.S. Department of Justice, recalls a case he presided over years ago in which a disabled person was fighting his employer for the right to work from home.

“And he (the employee) was a paraplegic,” Henderson said with disbelief. “I feel like a conversation like that seems quaint to the point of being funny now – a manifestation of an older model of thinking about the supervision of people.”

The quaintness, of course, stems from the COVID-19 pandemic, which has made working from home commonplace in many industries. The shift to remote work has been profound, employment law experts say.

“People used to place an incredible premium on management of employees by seeing them,” said Henderson, who is also the chairman of the Labor & Employment Law Section of the Maryland State Bar Association. “The pandemic has put the lie to that model of supervision. People can manage their own affairs and carry on with the same level of efficiency regardless of where they work.”

Henderson and other employment law experts say that the explosion of teleworking has meant new challenges for employers and employees — and that those challenges are not likely to go away when the pandemic is finally over.

“Had this pandemic ended in a matter of six months or maybe nine, some of the changes would be able to change back to the way we were before,” Henderson said. “But two years in, I think a lot of these changes are here for good.”

The challenges are numerous.

Employers now have to reevaluate and perhaps rewrite their employee handbooks to include new policies for hiring and for dealing with remote employees, experts said.

Such policies have to be clear, specific and applied uniformly, emphasized Kerianne P. Kemmerzell, an employment lawyer with Tydings & Rosenberg, based in Baltimore.

“You have to interface with employees (and) make sure everyone’s on the same page,” she said. “The future is teleworking. That’s the reality we’re facing.”

In particular, experts said, new practices and policies related to accountability and performance management may be needed for remote employees.

Experts also pointed out that employers may now have remote employees in multiple states, which can have different laws governing withholding taxes and unemployment contributions, among other things.

“Many employers have told me they found out after the fact that employees had moved, and they were not making the appropriate withholdings,” said Melissa Jones, head of the labor and employment group at Tydings & Rosenberg. The burden of knowing that an employee has moved is on the employer, she said.

Some jurisdictions also have their own laws regarding sexual harassment, mandatory training and required paid family leave, noted Lindsey White, an employment lawyer with Shawe Rosenthal in Baltimore and a member of the Maryland State Bar Association’s Labor & Employment Law Section.

“That’s definitely something that should be on the employer’s radar,” White said.

Novel forms of fraud also have arisen, Jones said: Remote employees have taken two jobs at the same time, unbeknownst to either employer, and new hires have turned out not to be the same people who interviewed for the positions.

“It was like a Cyrano de Bergerac situation,” Jones said of the latter scenario. “I can’t imagine how you even think that’s going to work, but it’s happened.”

Other thorny workplace issues have surfaced. One involves employees suffering from a lingering case of COVID. While the U.S. Equal Employment Opportunity Commission offers employers guidance on how to handle workers with a short bout of the virus, “long COVID” – a condition that could become a lasting disability – poses a different problem.

“Navigating that will be difficult,”Joyce Smithey, with the Smithey Law Group, said.

Another challenge for employers will be how to deal with injuries incurred at work by remote employees, and then determining what legal rights they have to workers’ compensation or disability benefits.

Henderson said employers should also address gender disparities faced by employees in the COVID economy, with women tending to have more child-care duties.

“Employers will have to think about those responsibilities of their people in the context of their management of their employees,” he said.

These challenges will not go away once the pandemic ends, employment experts say. Teleworking, they agree, is almost certainly here to stay.

“We’re going to see a lot of legal changes stay in place or continue to develop based on a remote workforce continuing to be the norm,” Smithey said. “Many, many employees are demanding that now.”