Since this issue focuses on women in the industry, it’s fitting to ask: How has the Covid-19 pandemic impacted women in the workplace and women in staffing, and what might it mean for employers and the staffing industry legally?

The biggest change we have seen in the workplace has been the rise of remote work. Pre-Covid, many employers steadfastly refused to allow it, arguing that it would be impossible to run their businesses if their employees worked remotely. The pandemic clearly proved many employers wrong.

But with the vaccines and a decrease in Covid cases, are employers obligated to continue allowing remote work? In many cases, they might — especially if working remotely would be an effective, reasonable accommodation of a disability. But there are other factors that employers may take into consideration as well.

Leave. If an employee needs time to care for a sick or disabled family member, they may be entitled to unpaid, job-protected leave under the Family Medical Leave Act. In some states, they may also get paid leave.

On the other hand, if an employee can do the job remotely, the employer might find that a more appealing alternative to leave. The employee is still able to work, and the employer does not have to worry about leave administration issues or finding a replacement worker. Employers may be fielding more requests like these, given that Covid often causes long-term medical issues, particularly for those who already had underlying conditions.

Flexible arrangements. Alternatively, if an employee occasionally needs time to go to doctors’ appointments or treatments, either for themselves or family members, they might be entitled to intermittent FMLA leave or intermittent leave under the Americans with Disabilities Act. However, a flexible work schedule might be a better option if they can still get their work done before and after the appointment or treatment. Flexible work arrangements might also be a reasonable accommodation if they have a disability, as defined by the ADA or applicable state laws. (Remember, employers also must comply with employment laws in each state where they have employees working.)

Equal treatment. Suppose you have no such obligations to provide your employees with options for remote work, but you have provided these types of accommodations in the past. If you do not do so now, your company might be exposed to discrimination allegations. For example, if a similarly situated white male employee previously received the same accommodations that a female minority employee is now denied, the female minority employee could claim that the refusal is based on sex and/or ethnic or racial discrimination.

The staffing connection. In cases that involve caregiving, women remain the ones more likely to assume that role – especially when the caregiving involves children. When it comes time to evaluate employees for promotion or training opportunities, does your company or your client take leave-related absences and remote work into consideration? If most people receiving these accommodations are women — or, for that matter, members of any class protected under anti-discrimination laws — and you consider that a negative, you might invite allegations that your practices have a disparately negative impact on women (or other classes). In other words, your practices end up excluding a disproportionate number of women (or other classes) from advancement opportunities; that is known as disparate-impact discrimination.

Staffing firms are typically joint employers with their clients. If a staffing firm places a contingent worker who needs these types of accommodations, and the client denies any such requests, the staffing firm can be liable along with the client for violating the ADA, FMLA and/or Title VII of the Civil Rights Act of 1964, to name just a few laws — and complying with a client’s request is not a defense! Reaching out to your employment counsel before calling your (or your client’s) employees back to the workplace and before implementing your (or your client’s) policies and practices will help you make fair, compliant decisions regarding remote work options. It will also save you and your clients aggravation, money (think legal fees, settlements and judgment) and turnover costs. After everything you have already been through with the pandemic, isn’t it worth the call?