Bell Nunnally Partner R. Heath Cheek and Associate Dominic L. Cruciani authored the D CEO Healthcare article “Expert: How Employers Can Manage Tensions During the Multi-Phase Reopening.” The piece looks at looming issues for employers as Texas’ return-to-work push begins in earnest following Governor Abbott dropping the mask mandate and declaring the state is “100% open.” Cheek and Cruciani suggest, “A helpful paradigm for managing expectations is to view the reopening of Texas in three phases: (1) allowance; (2) encouragement; and (3) requirement.” At present, businesses are allowed to set their own capacity restrictions and more employees are allowed to return to work – particularly in settings where remote work has been possible. During “encouragement,” “As businesses loosen restrictions and start ‘encouraging’ employees to return to work, employers may communicate this desire by simply expressing a ‘preference’ that workers return to offices.” And, finally, during “requirement,” “employees will shift from merely encouraging employees to return to office to requiring their return….While some business practices may be permanently altered by the pandemic, many businesses will likely return to old patterns to better address longstanding concerns including company culture, employee morale, and client requirements.”
At each stage, Cheek and Cruciani note that reasonable employee accommodations under the law need to be considered, with emphasis placed on encouraging employers to have open dialogue and engage in the interactive process with concerned employees. They close by adding, “With the transition from the ‘encouragement’ phase to the ‘requirement’ phase, conflict and friction are sure to develop between employees and employers. Some of these conflicts have already manifested in lawsuits filed by employees who were terminated for refusing to return to work. Businesses may wish to insulate themselves from liability by consulting experts to help navigate these uncertain waters and handle such delicate situations in compliance with applicable laws.”
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