By Erica Tarpey

First it was shutdowns and heartbreak, then vaccines and near normalcy, followed by variants and a sense of going backwards. For business owners and employers, the pandemic roller coaster continues to upend our plans, especially around how many people we need to maintain or grow our enterprises.

Many want a return to business as usual, with workplaces open and in person. A lot of employees want that, too, while others are more than happy with their brief commute from their breakfast tables to their home offices.

Even more factors loom over our decisions, such as:

• Local health regulations.
• How many employees are vaccinated.
• How many want to work on site but only with vaccinated colleagues.
• How many want to work on site but don’t want to wear masks.
• How many want to work on site but don’t want to wear a mask or get a vaccination.

These problems can be tackled, but the answers ultimately rest on how far you want to go to retain talent and how much employees want to keep their current jobs. The law will determine some of these issues, such as requiring vaccinations. Creative thinking, a committed understanding of your employees’ concerns and clear communication of your goals will go a long way toward building a safe, productive workplace.

Here are some legal matters and helpful tactics to consider.

Where, Exactly, Is Home?

Even before the pandemic, big companies that operate in multiple locations had already figured out how to deal with employees moving cities or even working from home. But as the pandemic has shifted from a long-term crisis to a true new normal, some issues may still be new to many of us.

If your employees are working remotely for the long term, you need to know if they are working in a different state than your business so that you know how to handle, for example, state tax withholding, workers’ compensation, etc. You also may have to register your business in another state and comply with other local rules and regulations.

More broadly, employers are having to address questions of salary equity based on where their employees are locating. If a teammate moves from Denver to Omaha but remains on staff, will you reduce their pay to reflect a Nebraska cost of living? And what if they move to expensive cities such as San Francisco or New York? Alternatively, this also can be an opportunity for employers because you can hire people from across the country and the globe if they don’t need to be on site – you can pull from a broader talent pool.

What’s at Stake if You Require Vaccination?

The law will allow you to do this, but you have to recognize what this means for your workforce and your clients or customers.

Requiring vaccination may give your employees more leverage to work from home. How does that fit into your plans? Companies are saying, if you’re not vaccinated, you can’t come into the office. So if employees don’t want to come in and don’t want to commute, does such a policy discourage them from getting vaccinated so they can continue to work from home?

What does your accommodations/appeal process look like, especially around health and religious exemptions? Remember that you can’t discriminate when enforcing this policy.

At its core, the vaccination question comes down to whether you are willing to terminate employees for noncompliance, particularly during a time when hiring is a challenge.

The Push and Pull of Home and Work Issues

Shortly after the pandemic started last year, I heard someone say, “We’re all in this together, but we’re not all in the same boat.” That’s true: Everyone approaches the pandemic through a personal lens, making it difficult for employees to consider how decisions affect the health of a business, and vice versa for employers.

For everyone who thinks they work better from home, someone else thinks the opposite. What does one person working remotely mean for their teammates who thrive more in an environment with other people around them – not a virtual one?

Employers have their own concerns. In a remote working situation, you can lose the opportunity for immediate feedback. Sure, you can conduct a meeting post-mortem over the phone or by Zoom, but it is different than an in-person meeting – and not always as productive. When you’re in the same room as your colleagues and the call or virtual meeting ends, you all can naturally flow right into the post-mortem. If you’re virtual, you have to get off the video, pick up the phone, and run the risk of some other task or request pulling someone in another direction, hindering the time they have for that debrief.

Fairly or not, business owners also may wonder if allowing remote work means they are paying for employees’ downtime. On the other hand, an employee who works from home but takes an hour to pick up children from school or get some exercise may return that hour later in the evening – providing staffing coverage that wouldn’t have been available otherwise. That result shows the value of flexible thinking, one in which the employer and employee have an open dialogue about what they need and how they can each get it.

Overcommunicate and Overplan

Sometimes we have discussions in committees to make an important decision, and after those meetings, we all know why the decision was made and what it will do. But when we tell the rest of the firm what’s been decided, we sometimes forget that individual lawyers and staff weren’t in the room to hear the discussions. If we don’t communicate what we considered in making the decision, we risk making the decision look capricious and arbitrary.

That’s why times of crisis, like now, require overcommunication by employers.

They also require overplanning. Our firm was ready for remote work in 2020 not because we foresaw the pandemic but because we had recognized that snowstorms are a reality in Denver, and we needed to be able to work as well remotely as on days when we were all able to get to the office.

Similarly, business leaders and employers should be thinking about the next crisis. Be it a health crisis or a weather event, it’s coming, and even if you don’t predict it exactly, your preparation can pay off in ways you wouldn’t have imagined. Employers who are prepared will be able to innovate and provide improved experiences for their employees – they will have the best and brightest wanting to work with them.

Erica Tarpey is managing director at Ireland Stapleton, a 40-attorney law firm with offices in Denver and Grand Junction, Colorado. Tarpey advises clients on matters such as corporate governance, business formation, SEC compliance and corporate finance.