COVID-19 has driven many of us into our homes, away from our families and to the edge of sanity. This much is obvious. But there are a few less obvious, and maybe even counterintuitive, consequences of working from home, like an increase in sexual harassment, a shift in the perception of working from home and the expansion of workplace accommodations.
All these things have consequences for the workplace that are not likely to go away with vaccinations or herd immunity. From my perspective as an employment law attorney, now is an ideal time for employers to put employment policies and practices into place — and plan to revisit them regularly into the future.
Social Distance Does Not End Sexual Harassment
COVID-19 sent many of us fleeing from our offices, into our home offices and in front of multiple monitors, devices and platforms. This has meant fewer inappropriate hugs, less touching in elevators and a decline in comments about coworkers’ dress or appearances. But, according to some reports, it has also created an environment ripe for sexual harassment.
With more of our interactions taking place on Zoom with cameras pointed inside our homes and communications by email, text and social media messaging services, the room for social interaction to become more casual and, therefore, more personal has grown. Put another way, COVID-19 has accelerated the move in sexual harassment from analog to digital. This new digital medium is also more easily traceable and often stored in multiple locations.
Even before COVID-19, the Equal Employment Opportunity Commission released a study that concluded isolated employees and decentralized workplaces were contributing factors to sexual harassment claims. Instead of physically distanced workers having fewer opportunities to harass others, isolated employees give harassers easier access to individuals in environments where there are often no witnesses. Likewise, with people working from home, there is limited communication between management and employees. In such instances, harassing behavior can go unseen, unreported and unchecked.
Fundamental Change in View of Working from Home
Gone are the days when working from home was code for taking the afternoon off, doing chores around the house, playing golf or even being less productive than those working in the office. For many of us, working from home has come to mean increased productivity, an extension of the workday, and the blurring of the lines between work and home. And these feelings are backed up by data. One study cited by the Society for Human Resource Management found productivity did not decline with the shift to remote work. Another study by the National Bureau of Economic Research found the typical workday extended 48.5 minutes in the weeks following stay-at-home orders. These studies highlight the flexibility of modern work environments, creating the possibility that working mothers can avoid some of the pressure and expectations exerted on them by employers.
I once half-joked with a fellow associate that her working mom arrangement with our firm meant half-time pay for full-time stress. Given that a large segment of the legal profession is working from home – one recent study found that 48% are operating entirely remotely, 39% are partly remote, and only 12% are in their offices – working from home should no longer be a limitation on mothers who need the flexibility and deserve the same opportunities as their male counterparts. (And, certainly, working fathers will also benefit from this increased flexibility, but not even the best litigator can argue that the rigid face-time requirements of legal practice have not disproportionately affected women in our profession.)
Likewise, employers will be hard pressed to contend that working from home is not a reasonable accommodation for employees suffering from a disability or that it would create an undue financial hardship, given the widespread adoption and productivity of COVID-related work from home. For those not familiar, the Americans with Disabilities Act requires that employers provide reasonable accommodations so that employees with disabilities can enjoy the same benefits and privileges as employees without disabilities.
Anyone who has practiced in this area has had to counsel an employer about an employee wanting to work from home, which employers were often loathe to provide, fearing a decrease in productivity and the demand by other employees for similar accommodations. For years, though, the Department of Labor has referred to workplace accommodations as “productivity enhancers.” And while, even during COVID-19, this may sound like a bit of a euphemism, the widespread mandate of working from home and subsequent voluntary adoption is an acknowledgement that working from home can be at least, if not more, productive than the traditional office environment.
Changes for Employers and Employment Practitioners
Prior to COVID-19, workplace harassment was an important topic among employers and employment lawyers. The pandemic did not change that. Anti-harassment training should be a regular part of any employer’s training. Given the amount of online and virtual communication going on, employers should revisit their policies to ensure they account for working from home and the unique issues it presents. And while they’re at it, they should probably review policies and practices regarding other forms of harassment, timekeeping for remote work, childcare and family leave, internet and device use, and the general well-being of employees.
Employers, including law firms, should also review their approach for working parents, particularly working mothers. Volumes have been written about the effect of pregnancy, child birth and parenting on women in the workplace. COVID-19 and the widespread adoption and acceptance of working from home may provide flexibility that will allow women to continue to work without the additional burdens historically placed on them. It could also allow disabled employees to more freely participate in the labor market.
Many of the decisions initially made by employers in response to COVID-19 last spring were on the fly. They then spent the summer adapting and implementing those policies. The fall and winter have brought their own set of challenges. But as vaccinations begin, we are all beginning to look forward to life after the pandemic. Employers should take this as an opportunity to grow and develop their policies and practices so that working, whether in the office or at home, is a better place for everyone.