With OSHA Slow on Guidance, Companies, Law Firms Are Slow to Return to Offices

“Where we’re at is hurry-up-and-wait status,” said Stuart Goldberg, a labor law expert at Baker Donelson. OSHA released its most recent plan on preventing the spread of COVID-19 in the workplace in January, but it hasn’t updated that. “A lot of businesses and industries don’t really know how to proceed and are hesitant to commit to things, because the landscape is so in flux,” Goldberg said. OSHA was supposed to issue updated guidance last week but stayed that release, he said.

OSHA has no standard for COVID-19 or infectious diseases, said Ashley Strittmatter, also at Baker. “An emergency temporary standard” is “on hold for some further review,” she said. It's expected to “set specific standards that employers have to follow to protect their employees from COVID,” she said.

Employers should put in place COVID-19 prevention programs “tailored to their workplaces,” an OSHA spokesperson said. Centers for Disease Control and Prevention provides guidance for employers, who have discretion on conducting operations remotely or in person, said a spokesperson. She said the CDC doesn't have data to forecast individual decisions by employers or predict how many businesses will decide to conduct business remotely or in person.

In a January email to FCC staff, acting Chairwoman Jessica Rosenworcel said the agency will continue its current teleworking policies "at least" through August. “The FCC continues to monitor the circumstances at and around each of our facility locations and assess how best to continue protecting the health and safety of our staff and our communities,” an FCC spokesperson said.

“As we reopen more of our work locations, we are considering numerous health and safety factors, including guidance from government and medical authorities and vaccination trends,” an AT&T spokesperson said: “We continue to proceed with an abundance of caution to protect our employees and customers.”

UScellular has been “checking the pulse of our associates to understand their desire to return to the office and developing plans to make their return as safe as possible,” said Deirdre Drake, executive vice president-chief people officer. The carrier is looking at a hybrid model, where employees will return to the office “when it is most important for collaboration and decision-making” while “allowing for remote work the rest of the time.” Drake anticipates “a pilot return to in-person work early this summer.”

Lumen is also among those taking a phased approach. The company doesn’t anticipate implementing its phase one return, which will include “a custom employee health screening app to screen for potential symptoms,” before June 1, said a spokesperson. It will “depend on community transmission rates” and whether employees are “requesting to return to the office.”

Law Firms

Mintz isn't requiring employees to return to the office at least until after July 4, and likely past Labor Day, said Susan Berson, managing member of its Washington office, which is moving locations in July. The return to in-person work is subject to D.C. and CDC guidance, she said, and mandatory vaccinations for staff aren't likely. The firm will continue to have masking and social distancing in the office, she added.

About 10% of Mintz staff is in the office on any given day voluntarily, Berson said. "I don't think we are ever going to come back 100%," she said. Personally "a huge proponent of being in the office," Berson said the firm has demonstrated that clients can be served well remotely and likely will use a hybrid model long term. She said people will likely be in the office especially for depositions, large transactions and training.

Some law firms are taking their cues from the federal government or large trade groups, attorneys said. “Some of us are still in varying degrees of getting vaccinated,” said Fletcher Heald broadcast attorney Francisco Montero. “It is a little bit of wait and see.” Montero said about 15% to 20% of his firm is in the office at any one time. Smaller law firm Gray Miller said there isn’t much pressure yet to return employees to the office. “We’re overwhelmingly remote,” said partner Todd Gray. He said he misses the collaboration opportunities of being in the office but otherwise hasn’t found remote work to be a barrier.

Other major carriers and cable operators weren’t ready to comment. Other law firms with communications practices are looking to return more lawyers to offices this summer but watching the pace of vaccination, we were told.

'Right vs. Right'

Employers have an obligation to protect employees, said behavioral scientist John Allegrante, a professor at Columbia University. Employees' differences in age and underlying health conditions should be taken into consideration, he said: Employers need to make “the accommodations that might be necessary to enable people to stay home and work from home.”

COVID-19 transmission levels vary by state, Allegrante said, so employers will need to make decisions based on the most recent data in their location, in addition to public health guidelines. “We can’t guarantee that individuals who practice all of these behaviors are going to avoid infection if they’re in a broader context where there are high rates of infection taking place,” he said.

Executives are having to make a “right versus right decision” on returning employees to in-person work, said Sandra Sucher, professor of management practice at Harvard Business School. “It’s good to get people back to work … and it’s important to keep people safe,” she said. “Both of those are moral goods” and a hard choice. “That’s the nature of a right challenge. You do have to weigh them.” Some companies are piloting the return of certain groups and then gathering data, she said. “The safety risk far outweighs the company benefit, until it’s proven not to.”

Alex Besen, CEO of the Besen Group management consulting practice, advised that communications industry companies make sure that all their employees get their vaccines so they can return to more in-person work.

TECHnalysis Research is “hearing all kinds of different days and approaches for return,” said President Bob O'Donnell.

Kastle Systems, which tracks building occupancy, reported this week that in 10 major cities, occupancy is 24%, with a high of 39.7% in Dallas and low of 13.7% in San Francisco. “We’ve seen small drops, likely due to spring break, and anticipate an increase when vaccinations become more widespread but haven’t seen that yet,” a spokesperson said.

A sizable portion of employers -- maybe the majority in some fields -- expect at least a partial return to the office by fall, said remote work expert Barbara Larson, Northeastern University executive professor-management. Many school systems anticipate returning to full-time in-class schooling in the fall, which seems to be driving the timing for a lot of employers, she said. Some industries, such as tech, are using work-from-home opportunities as a recruitment tool, she said.

Along with often being "pleasantly surprised" about productivity not dropping during remote work, CEOs see potential cost savings, Larson said. Employers may not reduce their real estate footprints significantly but won't need additional space even as they accommodate social distancing, she said.

Smaller entities may have an easier time determining next steps. The FCBA isn’t thinking about returning yet because it has only four staff members, said Executive Director Kerry Loughney. “We are doing just fine working remotely and will take the lead from others upon return.”

USTelecom has been “regularly evaluating” its return as vaccine availability increases and “consulting with our team about when and how is the best way to return,” said a spokesperson. NTCA anticipates shifting to a “hybrid workforce” and is working to bring staff back to its Virginia office later this year, said Laura Withers, vice president-strategic communications: “We are following CDC guidelines and taking into serious consideration the capacity needs for continued social distancing in our office spaces, and we are reviewing our staff travel policy.”

“While we certainly miss working together and going to the Hill and the FCC in person on a daily basis," the Competitive Carriers Association "is still monitoring current conditions including vaccine availability,” said President Steve Berry. CTIA didn’t comment.

Others have enjoyed working remotely and plan to continue. The Fiber Broadband Association intends to stay remote post-pandemic, said CEO Gary Bolton. He said he hired new staff at the beginning of the year, with employees across the country, and will “continue to leverage the amazing efficiencies gained from a virtual workplace.”

Broadcasters

Broadcasters are approaching the question of returning slowly. Hearst Television is planning a “conservative approach with regard to all the precautions,” said President Jordan Wertlieb on an NAB panel Monday. “We have not opened completely.” With stations in jurisdictions with different pandemic restrictions, it has stuck with more stringent requirements across the company “to make people comfortable,” he said.

Gray Television allows relaxed protocols for employees with proof of vaccination, said Chief Legal and Development Officer Kevin Latek. “Each location’s management may invite some Fully Vaccinated employees to cease remote work and return to working in our workspaces,” he emailed.

“As vaccines continue to roll out ... we’ve been gradually phasing employees back to our offices in many markets,” said a spokesperson for Audacy, formerly Entercom. “Throughout the process, we’ve been adhering to all safety protocols and expect to increase capacity in our workplaces as the year progresses.”

Most E.W. Scripps employees are working from home, but each location has its own plan, a spokesperson said: “We are adhering to local regulations and best practices on social distancing, masks and other protocol for protecting the health of our employees.”

“Our leadership team is beginning to think about what a fuller return to stations and buildings could look like,” said Scripps CEO Adam Symson in a recent note to employees. “While the timing of when different departments returning to their work locations may differ, we will give you at least four weeks’ notice about changes impacting you."

Wertlieb and Graham Media CEO Emily Barr stressed the importance of clearly communicating with employees about the company’s thinking on the pandemic. Barr has been personally writing a companywide newsletter, she said, while Wertlieb said Hearst has been holding companywide Zoom calls, they said.

Several entities said they foresee permanent changes in how they work. “We’re never going to go back to all five of us being in the office,” predicted law firm partner Gray. Montero said in-person meetings with FCC staff will likely never again be as common as they were pre-pandemic. “The pandemic has allowed us to rethink the office of the future, and we expect that in the future, our spaces will be flexible, collaborative and will allow for more remote working arrangements where appropriate,” said Audacy. “We will revisit our remote-work policy later this year on a location-by-location basis depending on local health conditions,” said Latek.

NAB permits "a limited number of staff to work in person" at its new headquarters and will follow D.C. guidelines on reopening, a spokesperson said. "As these guidelines change and NAB transitions fully back to the office, ensuring the health and safety of our employees will continue to be our foremost priority.”

Tony Reardon, head of the National Treasury Employees Union -- which represents FCC employees -- said on a recent podcast the pandemic made teleworking “an indispensable part of the federal workplace” and a union priority. NTEU's Chapter 209 -- the FCC’s chapter -- will survey FCC employees about telework, employees concerns about returning to the office, and the suitability of some positions for more remote work, said Tracy Bridgham, chapter president. NTEU expects to pursue expanded telework policies at the FCC even after the pandemic, she said. There's “a clear need” for the agency to reward employees with more bonuses and promotions to recognize the pandemic contributions of FCC staff, Bridgham said. The Communications Workers of America supports voluntary vaccinations, but that shouldn’t be a condition of employment, it said in a statement. Workers should be able to get vaccinated without lost wages or sick time, CWA said. “Employers must continue to provide appropriate personal protective equipment to employees and implement comprehensive workplace protections and mitigation strategies.”