Tips for Adopting Solid Workplace Flexibility

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August 30, 2022

How setting clear expectations around workplace safety, remote work, and paid leave is the key to emerging strong from the pandemic.

By Joyce Smithey and Lauren Agresti

More than ever before, knowledge workers are expressing a desire for increased flexibility in the workplace, from remote work to nontraditional hours, to leave policies that allow more room for life to happen. These desires are especially strong among parents, women, and people of color. In a historically labor-friendly economy, creating and retaining a diverse, inclusive, productive workforce require employers to take these preferences into account.

Given the rapidly changing nature of the world and of employee preferences, a new normal that works for everyone is unlikely to emerge organically.

Despite these desires, full-time remote work has some well-documented downsides for employee well-being and organizational health, including blurry boundaries between work and family, overwork, and weaker social connections among colleagues. Younger workers and interns at blue-chip companies are increasingly expressing interest in in-person opportunities for mentorship and networking. And perhaps most concerningly, working parents—the very workers who express the greatest interest in flexibility-oriented policies—worry the most about the influence that not being physically in the office will have on their careers.

In an attempt to split the difference, many workplaces are testing out perks like in-office meals or two allotted remote days per week to try to keep everyone happy. But as any manager could easily attest, cultivating a positive working environment is not that easy. Reports from the field about returning to work are grim. Even when employers put hybrid policies in place to slowly lure workers back to their desks, frustration abounds when team members remain in different places at different times, rendering the entire exercise futile. These half-hearted attempts at rebuilding an in-person culture serve only to risk employee attrition in a tight market.

For management, this seemingly paradoxical state of affairs may seem impossible to reconcile, but it doesn’t have to be that way. We can break down how best to fundamentally reshape the way we do business by examining a relatively bite-sized analogue: post-pandemic workplace safety.

During the worst of the COVID-19 pandemic, governments and employers took unprecedented action to reduce the transmission of the virus, from total shutdowns to mask mandates to temperature checks at every office door. We stood six feet apart on neon-colored painted circles, playing a deadly serious game of hopscotch through mazes of plexiglass and dousing ourselves in enough hand sanitizer to strip the road paint off every highway in America. Sensibly enough, critics of these measures asked—quite vocally—whether the impact of virus mitigation on our collective mental health was worse than the effects of the actual disease. People of all walks of life and at every level of leadership expressed concerns about social isolation and the disruption of a sense of normalcy that resulted from our attempts to keep ourselves physically well.

Intuitively, it made sense that the total upending of our way of life could cause distress and, in the workplace, problems with productivity. But the research did not bear those hypotheses out. We now know, for example, that employees suffered more negative than positive consequences to their mental health from the easing of COVID-related restrictions than they did from the imposition of those restrictions in the first place. In fact, loosening rules around social distancing and masking has been shown to increase distress, depression, anxiety, worry, and somatization in employees. By contrast, workplace measures such as workplace hygiene and masking greatly reduced those same symptoms.

How could it be that venturing into frankly apocalyptic conditions, breathing heavily into hot, itchy face coverings, and retreating alone at the end of each day to attempt to make sourdough bread were better for our mental health than throwing caution to the wind? Despite our loud complaints and often rebellious nature, people—generally speaking—like knowing what they’re supposed to do. Rules and expectations help us to feel safe, to feel cared for, and to feel that we can fulfill our duties to the people around us.

In line with the evidence, we—as employment lawyers—do not encourage an ad hoc approach to workplace safety, even as governments lift nearly all COVID-19-related rules. Even as workplaces understandably choose to lift indoor mask and social distancing requirements in line with guidance issued by the Centers for Disease Control and Prevention, the most successful employers still have and communicate a safety plan. Those employers offer explicit messaging to employees that continuing to mask and distance when reasonably possible is a decision that will be respected and accommodated. They discourage judgment and scorn among colleagues concerning health-related decisions, encourage employees to stay home when ill, and have clear procedures in place for continuing outbreaks of infectious disease. Employees are kept in the loop with respect to information pertinent to their health and are assured that their confidential medical information will be handled appropriately.

This type of clarity has benefits for both employees and employers. Employees feel safer at work, both from unwanted health outcomes and derision from their peers. They know what their managers expect and require to maintain a healthy environment. On the employer side, successful companies enjoy reduced human resources complaints, internal disputes, loss of productivity, and legal exposure. Most relevantly—from our perspective—these employers reduce their risk of Title VII claims related to discrimination and harassment of disabled employees who must continue to practice mitigation, and these employers are less likely to face accusations of retaliation against workers who report unsafe conditions under the Occupational Safety and Health Act.

Extrapolating these lessons to remote and flexible work makes workable solutions much easier to imagine. While the intuitive answers to employees’ expressed preference for unconventional work arrangements may appear at first to be either to blithely hope for an eventual return to the pre-pandemic state of affairs or to grant on an ad hoc basis, we can infer from evidence that employees favor responsive proactivity and structure over reactivity and capitulation to the way things happen to shake out.

As with workplace safety, our prediction is that the key to workplace culture emerging strong from the pandemic will be having and communicating a plan that considers the interests of employees as well as the company. While bringing everyone back to the office from 9 a.m. to 5 p.m. may not advance retention, diversity, equity, and inclusion goals, a laissez-faire approach to “face time” may be a risk to social cohesion and attracting a new generation of talent. The most successful companies will be those that delineate hours that employees are expected to be online or in the office, with a clear purpose of collaboration and development over presenteeism.

Both employers and employees stand to gain from this approach, which we’ll call a solid approach to flexibility. Employees benefit from a clear understanding of expectations and performance-related metrics related to attendance and corporate citizenship. They are also less likely to suffer the mental-health-related drawbacks of remote work, such as overwork to “make up” for a lack of physical presence and blurred lines between work time and personal time. Employers enjoy the tremendous upside of increased availability of mid-level and senior staff to new recruits and improved social connections among workers, without losing out among the diverse talent pool that desires a less old-fashioned approach to work. And from a legal exposure perspective, defined expectations around online and in-office time reduce the risk of bias and discrimination against the very groups that most fear their career opportunities are being hampered by remote and flexible work.

Given the rapidly changing nature of both the world we live in and employee preferences, a new normal that works for each organization long term is unlikely to simply emerge organically. Instead, the employers that actively engage in re-creating the future of work will reap the most rewards.

Joyce Smithey and Lauren Agresti are employment law attorneys at Smithey Law Group in Annapolis, Maryland.



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Joyce Smithey, a seasoned employment and labor law attorney, has over 22 years of experience representing both employers and employees in Maryland and D.C. Her practice, rooted in a deep understanding of employment law, spans administrative hearings to federal litigation. Joyce's approach is comprehensive, focusing on protecting client interests while ensuring legal compliance. A Harvard graduate, her career began in Fortune 500 companies, transitioning to law after a degree from Boston University School of Law. Joyce's expertise is recognized by numerous awards, including Maryland’s Top 100 Women. At Smithey Law Group LLC, which she founded in 2018, Joyce continues to champion employment rights, drawing on her rich background in law and business.

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