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Working in a Post-Pandemic World: Navigating the Changes and Uncertainties Wrought by COVID-19

Sarah R. Marmor

Scharf Banks Marmor LLC

The notion that the COVID-19 pandemic has upended almost all aspects of work life is well-documented, but the implications of the changes we all have experienced still are being played out in workplaces both large and small. How employers manage the needs of businesses and of their employees as they emerge from a time of crisis can create opportunities for strengthening the bonds with their workforce, and it can present legal risk—running the gamut from discrimination claims to data privacy issues to wrongful death litigation. The long-accepted idea that consistency in an organization’s rules about things like working from home, start and stop times in an office, and accommodating employee’s individual circumstances outside of the disability context was challenged in many companies during the pandemic, and there is considerable debate about whether and to what extent the changes are temporary or permanent. This article addresses some of the issues employment lawyers expect employers will be grappling with in the coming years.

Changing Ideas about When and Where We Work

In January 2020, if an employee asked to work from home part time or even all the time for a non-disability-related reason, an employer might well have said no, reasoning that being in the office ensured the employee was dedicating her working hours to work and that collaboration with fellow employees would be hindered if a member of a team was working remotely. In the disability context, the employer would have considered whether working at the office fit an essential function of the job, and if it did, the requested accommodation legally could be denied.

In June of 2019, the Seventh Circuit held in Bilinsky v. American Airlines, Inc., 928 F.3d 565 (7th Cir. 2019) that an employee who had been permitted to work from home for years could be required to be physically present to perform her job after a merger and an increase in workload in the employee’s department. In what may seem almost quaint language these days, the court observed that “regular work-site attendance is an essential function of most jobs.” But the court also recognized that telecommuting was no longer the extraordinary accommodation it once was and warned that litigants and courts “in ADA cases would do well to assess what’s reasonable under the statute under current technological capabilities, not what was possible years ago.”

We had a crash course in “current technological capabilities” in 2020, including the ability of companies to function with employees scattered to the winds, coming together for zoom calls and email strings, and by and large still getting the job done. At the same time, the days were longer for many employees. Doing fairly simple tasks could become surprisingly complicated without a scanner and a printer and a supply closet at hand, and managing children or pets or even loud roommates was a source of stress and distraction, especially if an employee’s home didn’t include a dedicated office. Now, as we emerge from enforced home work, what will employers do about getting employees back to offices that may have lain dormant for many months? If an employee does not want to return to work for fear of public transportation, office sanitation concerns, or childcare needs, what is an employer to do? Should employers require employees to be vaccinated before they can work in the office? Must employers accommodate employees who don’t want to or perhaps cannot be vaccinated?

These questions already were simmering and have reached a boiling point with the Delta variant, and the answers are likely to evolve over time. Some large employers still have not reopened their offices, recognizing the logistical hurdles and health fears associated with hundreds of employees coming to work in centralized spaces that increasingly had become “open plan” setups. Others have been relatively quick to require all employees to return based on business need or simply management preferences. And yet others are operating on a hybrid model, allowing employees to decide if they want to work from home or remotely, either all the time or some of the time. Whether, and to what extent, employers can trust their employees to work effectively from home seems to be at least part of the calculus in deciding which of these approaches to take. An even bigger driver for some employers is that they may not be able to attract or retain employees without work-from-home flexibility.

The good news is that working from home has not resulted in the productivity losses that employers expected in 2020. In a January 2021 Survey by PwC, 83% of employers said the shift to remote work has been successful (up 10% from June 2020). Only 13% were “prepared to let go of [offices] for good,” and employees wanted return to office planning to move more slowly than expected; this could vary based on level. Most studies, including this one, lack consensus on how much time should be spent in the office on a hybrid model—although it is clear both employers and employees at companies where at-home work is possible expect that at least some time will be spent working from home.

Other open issues include how to comply with state orders and city ordinances—not to mention landlords’ rules—that may limit how many employees can occupy an office, and what to do about employee hours whether working from home or remotely. For hourly employees, how to account for overtime and off-hours work can be a complicated matter for employers and could well surface as a litigation risk in the coming months. See USDOL Guidance to Clarify Employers’ Obligations to Track Teleworkers’ Compensable Hours (8/24/20).

While early on Congress and the Department of Labor passed new laws and rules concerning paid leave for employees affected by COVID-19, few new hard and fast rules concerning workplace safety have been implemented and those laws now have expired. OSHA was flooded with “whistleblower” complaints of alleged safety hazards related to COVID-19—a DOL Inspector General reported in August 2020 that OSHA received 30% more whistleblower complaints between February 1, 2020 and May 31, 2020 compared to the same period in 2019, and approximately 40% were COVID-19 related. As has been widely reported, however, OSHA lacks the staffing to handle this increase and as of the date of this article, the only widely publicized agency action instituted by OSHA against any employer concerning COVID-19 hazards has been notably small fines.

Legal Risks and Emerging Claims

The lack of agency or governmental action so far to impose liability on employers for how they are managing employees during COVID-19 does not, of course, mean there are no risks associated with this topic, both immediately and in the future. Whereas an employer could have had restrictive work-from-home policies before, the example that has been set more recently undermines many of the arguments against permitting it, and employees who need to do so for disability-related reasons may well have the stronger argument in favor of accommodating such a request under the Americans with Disabilities Act and/or state laws henceforth. A related concern is how employers make decisions about who gets to work from home and who does not (not to mention other accommodations). It is not hard to imagine that discrimination claims arising from differing decisions could ensue. At the same time, employers now know a lot more about their employees’ personal circumstances than they did before—not just how cute or loud their dogs are, but also how many family members who may be in high-risk groups live with them or whether they work from a home office or a kitchen counter. It is natural to consider those circumstances—at least right now—in making decisions, and it may even be advisable, despite the potential for legal risk.

On the flip side, how employers assess their employees for retention, raises, and even bonuses also is going to be complicated and could create risk around pay equity and, again, discrimination. Women reportedly bear the greater brunt of household, childcare, and schooling obligations when working from home. Add to the mix those employees who may have been poor performers before or are not seeming to pull their weight now. Employers who terminate some employees in this period could face additional scrutiny. Indeed, lawsuits already are being filed over allegedly retaliatory discharges related to COVID-19 safety complaints. In Illinois, for example, a healthcare worker filed suit claiming he was fired for complaining about the lack of proper PPP at the hospital where he worked. A nursing home supervisor also filed a retaliation claim under state common law and statutes alleging she was fired for raising issues with safety at the nursing home where she worked. Whether and to what extent anti-retaliation claims will succeed—especially when the guidance from governmental authorities has changed significantly over the course of the crisis—is of course an open question.

Another avenue of legal risk for employers is tort claims arising from requiring employees to work outside the home. Last year, courts in California and Illinois issued injunctions forcing McDonalds stores to close under a “public nuisance” theory—that allegedly inadequate safety measures put employees, and the public, at risk of transmission and spread of COVID-19. Similar suits have been filed against Amazon and Smithfield Foods, although the latter claim was dismissed as a matter of law in May 2020.

Finally, employers could be subject to wrongful death claims from the families and estates of employees who fall victim to the disease. In a widely watched case, the family of a Wal-Mart employee alleged the employer did not do enough to protect its essential workers from contracting the disease while on the job. Similar suits were filed against Safeway and Tyson foods. Issues of causation and other legal impediments could well make these cases hard to win, but the risk remains, and these cases highlight the value of openness and trust between employers and employees.

Notably, however, the number of lawsuits filed over COVID-19 has not exploded. As of Spring 2021, approximately 1,500 cases had been filed, with small employers most at risk for suits. At least one state (Indiana) has passed a tort immunity statute for Covid cases against employers and other states may follow suit. A more salient question in 2021 is whether employers who require employees to be vaccinated will be the next target of litigation.

Can Employers Require Vaccination for On-Site Work?

In the waning months of the Trump administration, the EEOC issued a series of guidelines, two of which bear directly and indirectly on the question of what to do about employees who want to continue to work from home and those who may not want to take the vaccines that were approved for emergency use beginning in December 2020 by the FDA. First, the DOL announced in 2020 that allowing employees to telework during the pandemic cannot be deemed an admission that telework for a particular job remains a reasonable accommodation once the pandemic has passed. As the EEOC explained:

The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations. The employer has no obligation under the ADA to refrain from restoring all of an employee’s essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules.

Second, on December 16, 2020, the EEOC announced that—subject to religious exemptions and the ADA—employers could require employees to be vaccinated against COVID-19 prior to returning to on-site work. At first blush, this seemed like a pretty sweeping and straightforward rule—but myriad issues have been raised about the guidance, and it is marked by many risks for employers. These include the danger that although requiring a vaccination may not be an improper “disability-related inquiry” under the ADA, employers who administer their own vaccines could obtain pre-screening information that does violate the rule that they must not make such inquiries. How to accommodate those who cannot or will not take the vaccine also could be complicated and fraught with risk. And if these employees cannot be accommodated, the employer likely has to consider whether termination is appropriate or whether waiting until the risk from the pandemic is under control might be a reasonable alternative. Finally, some commentators argued the EEOC’s guidance is simply wrong where, as here, the vaccines in question were so new and were only authorized on an emergency basis. Committed litigants could play that question out in myriad ways, although the point is likely to be moot as the vaccines become fully authorized.

Indeed, at least one law firm in New York has emerged as litigation coordinator for suits against employers with mandatory vaccine policies. The firm has sued or threatened to sue nursing homes, universities, and a sheriff’s department. In one case in Wisconsin, the firm pursued a skilled-nursing facility that had tried to impose requirements after fifteen cases and two deaths. In May 2020, a county committee voted to recommend that the facility revoke its policy and reinstate employees who had been terminated for refusing to be vaccinated. Contrast this with the Biden administration’s recent announcement of federal rules for mandatory vaccination in nursing homes and the potential for even more complexity becomes clear. And the fight is just starting.

Unions have sued arguing that a mandatory vaccine rule must be bargained for and cannot simply be imposed; a suit in Houston by nurses over a mandatory vaccine policy promptly was dismissed; and new suits are being filed every day. A common theme in the suits—and a common justification for vaccine refusal from many individuals—is that because the vaccines only have emergency use authorization, they are experimental and cannot be required. This argument always was a bit suspect in the legal context given that the FDA’s emergency use authorization meant the shot was safe enough for the public. Under the applicable statute, an Emergency Use Authorization may be issued when the Health and Human Services Secretary determines that there is a public health emergency. That finding was made in 2020. More to the point, under the statute, vaccine recipients must be told about the potential benefits and risks of its use as well as their right to refuse to take the vaccine. They also must be warned about the consequences of refusing administration. Some commentators have suggested that in the case of an at-will employee, consequences may include being barred from the workplace or having their employment terminated. In any event, that argument may fall by the wayside as the FDA granted full approval to the Pfizer vaccine on August 23, 2021 and is expected to do the same at least as to the Moderna vaccine in the near future. The FDA’s announcement accelerated decisions by US employers to require vaccination as a condition of employment, although the details of the policies are likely to vary depending on whether the workers are unionized, public, or private. More employers are likely to follow suit in the coming months.

While it is unlikely that these cases will succeed under federal law, state laws may be another story, and indeed some states are going so far as to ban vaccine mandates. Arkansas passed a law in April 2021 barring state and local governments from requiring vaccination in employment, education and other contexts. Ark. Code § 20-7-142. And Montana bars both private and government employers from discriminating against any employee based on the employee’s vaccination status. Mont. Code Title 49, Chapter 2, Part 3. The bottom line is that vaccine mandates are a minefield for employers, explaining why—at least prior to the recent surge of Delta variant cases and the FDA’s full approval of the Pfizer vaccine—most employers were not planning to impose vaccine mandates.

New Protections for Workers

The impact of the new administration already is being felt in at least one area. Whereas the prior administration did not provide significant protections to workers who felt their workplaces were unsafe for themselves or family members, in the first month of the Biden Administration, there has been a shift in favor of more protections for workers. President Biden issued an Executive Order shortly after taking office that called on the DOL to “consider clarifying that workers have a federally guaranteed right to refuse employment that will jeopardize their health and if they do so, they will still qualify for unemployment insurance.” And on January 29, 2021, OSHA issued new workplace safety guidance that suggested a greater focus on workplace safety than it had in the preceding year. These included the following admonitions to employers:

Instruct workers who are infected or potentially infected to stay home and isolate or quarantine to prevent or reduce the risk of transmission of COVID-19. Ensure that absence policies are non-punitive. Policies that encourage workers to come to work sick or when they have been exposed to COVID-19 are disfavored. See below for additional guidance involving eliminating the hazard.

Minimize the negative impact of quarantine and isolation on workers. When possible, allow them to telework, or work in an area isolated from others. If those are not possible, allow workers to use paid sick leave, if available, or consider implementing paid leave policies to reduce risk for everyone at the workplace. The Families First Coronavirus Response Act provides certain employers 100% reimbursement through tax credits to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19 through March 31, 2021.

The message seems clear that in the coming years, employers can expect more rules concerning how they manage COVID risks in the workplace. Indeed, in the first year of the Biden Administration, OSHA has more than tripled its use of the General Duty Clause of the Occupational Safety and Health Act to cite employers for COVID-19 hazards not covered by an existing standard. Under the General Duty Clause, OSHA can cite an employer in the absence of a specific OSHA standard, such as those that govern respiratory protection, PPE, and sanitation.

The post-pandemic work landscape rapidly is changing—in large part because we are still in the pandemic and because no one really knows when or how it will end. Improvisation, creativity, and a little kindness will help employers and employees most as they weather the changes, and we can all hope for calmer days ahead.

Sarah R. Marmor heads Scharf Banks Marmor’s Employment Counseling and Litigation Practice. She concentrates her practice on employment law, complex business litigation, and life sciences/product liability. Sarah has tried complex cases throughout the United States, in state courts in Illinois, Colorado, Oklahoma, Louisiana and Texas and in federal courts in Illinois, Michigan, California and New York. Sarah co-presented Hot Topics in Compliance and Ethics, available from PLI Programs On Demand, and co-authored Product Liability Litigation: Current Law, Strategies and Best Practices (Second Edition) (read now on PLUS).

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