The unpredictability and scale of the COVID-19 pandemic has forced the world to adapt to a new way of working, in some cases practically overnight. Now, more than ever, it is necessary to reimagine work and how it is done.
In the US, employers are more likely to be able to compel employees to get vaccinated, but in many countries employers are legally unable to require employees to be vaccinated before returning to the workplace. In many European countries, it is unlawful to even inquire about an individual employee's vaccination status.
If employers intend to use vaccination status as a condition of entry to the workplace, they will need to verify where that is permitted and may require a menu of alternative options, such as proof of a negative COVID-19 test
Hybrid working as the new norm
The sudden arrival of the pandemic prompted even the most reluctant employers to consider new agile working options. Many Fortune 500 CEOs found, to their surprise, that working from home works.
Before embarking on radical changes to remote working policies, businesses should consider the many inter-related legal considerations and factors at play including employment law, employee taxation and benefits, health and safety, data privacy and protection, and corporate law and taxation.
Critical considerations for businesses include:
- Can the job be performed (effectively) remotely?
- What (if any) limits are there on flexible working? Is it temporary or permanent or part time? Is it restricted to the country where the business operates? There are material tax, employment and immigration questions flowing from cross-border working arrangements Is there flexibility of working hours?
- Who will bear the cost of home working equipment and expenses? What obligations are there on the business or the employee in respect of insurance and what controls does the company have in place to monitor compliance?
- Will the business monitor work performance and productivity whilst respecting employees' privacy and personal lives? If so, how?
- How will the business monitor working hours, particularly in countries such as France, Spain and Italy, which have the right to disconnect outside of working hours?
- How will the business maintain culture and engagement with those working remotely? Will those at the start of their work journey get the right level of supervision, direction and opportunity to develop?
- How will the business support those employees who find remote working challenging or unsafe, for example, from a mental health or domestic abuse perspective? What measures does the business have in place to look after their employees' health and wellbeing? What training is in place for managers and employees to identify early signs of problems and escalate or support a colleague who needs help?
- Do IT, data privacy, “bring your own device” and other policies need to be updated or rolled out to facilitate successful remote working?