By: Patricia McHugh Lambert, Esquire
I very rarely go on long vacations. Too often, I have been unable to get away from the demands of business or the ever-ringing phone. Instead, I usually just take a one-week vacation here, a long weekend there, and a random day or two off. That said, I remember the time when I went on a vacation for three weeks. During the first week, I tried to decompress and detox from bad habits such as reaching for my phone to check emails every hour. Towards the end of the second week, I started to relax and consider what it would be like to live at the beach. By the start of the third week, I was not wearing shoes.
I mention the shoes because I found it difficult to put on work shoes when I returned to work. My regular work shoes seemed odd and ill fitting. They pinched and blistered my feet the first couple of days. Gradually, as the vacation wore off and my relaxation faded, my shoes started to feel like they fit again.
From my perspective, our business community is in a transition from bare feet to shoes. When the glass ball in Times Square drops, many employers are now requiring that employees come back to work—in the office. Many employees do not want to return to the office workplace at all, finding home and hearth more conducive to a balanced life. Other employees welcome the full return, noting that they miss the camaraderie of the workplace as well as bagel Fridays. Some want bare feet; some want to wear work shoes. And there is a vast group of employees that want to be able to work remotely part time, but are willing to work at the office for a good part of the work week.
If one reads the business literature, it is clear that employers that do not offer employees an opportunity to work remotely for at least some portion of the workweek will be at risk of losing employees. A “No Remote” policy could also prevent employers from finding and retaining talent. As a result, many employers are considering permanent post-pandemic hybrid work policies.
The permanence of such policies is what is new. During the pandemic, those that could work remotely were allowed to and often commanded to work remotely. Because of the fluid ‘when will it end’ nature of the pandemic, no permanent policies were made. Now, we are going into a new phase where, with hybrid work policies, we go barefoot on Monday, wear shoes Tuesdays through Thursday, and wear flip-flops on Friday. This hybrid world – partly remote, partly in person- creates the opportunity for risk, loss, and lack of control.
With this new permanence, insureds need to be more aware of the risks that come from hybrid work policies. They need to ask questions like:
- What are the risks of loss of data, particularly as people switch between work environments? Is there a need for increased security or increased insurance protection for cyber-threats?
- What employment compliance risks of hybrid policies? Workers Compensation issues? Taxing issues for employees that might be working from home some days in another state? Are there more opportunities for wage and hour issues? Is there a need for increased Employment Practice Liability Insurance?
- What are the safety and security issues related to both the in-office and the remote workplace? For example, if an employer knows that an employee tends to children during the remote work day, will the employer have liability if that child is injured? Is the employer insured for such off site risk?
The hybrid work model is creating new risks, but many employers are simply renewing old insurance policy coverages without thinking of whether the insurance product that they have now fits their new reality.
Of course, risk control is more than consideration of insurance products. The best risk control is about people. Engaged employees help reduce risks. Humans want to be part of something; they want to build on the positives as part of a team. Too often, employers are creating hybrid work environments without thinking of how this creates a permanent change to the work place. Too often, the policy is just put into effect without consideration of the new norms and the new culture that is being created.
In other words, in order to reduce risk and to create better controls, thought needs to be given to the question: “What is our goal for our new hybrid policy?” If the remote work day is intended to be a day for deep thought projects, then there needs to be certain expectations about interruptions and work product to be produced. If the remote work day is intended to be no different than a day at the office, then methods to replace lost informal communication paths need to be created. If remote work days are to be discouraged or only used for those who are not on the promotion track, then my advice is that the employer should really rethink whether a hybrid policy is appropriate.
I do know that a hybrid work policy with remote work days should not be treated like a vacation day where one runs shoeless in the backyard. Nor is a remote day a day to wear one’s best work shoes. It is something different, something new. Because anything new creates new risks as well as opportunities, risk prevention and loss control need to be considered.
Ms. Lambert has over 35 years of experience in handling complex commercial litigation and insurance matters. Ms. Lambert has worked on national class actions, significant litigation and regulatory matters for Fortune 500 companies. She has also assisted small and mid-sized companies and business executives with contract, real estate, liability assessment and commercial disputes that needed to be resolved quickly and efficiently. Ms. Lambert is best known as an attorney who knows the field of insurance. She has represented insurers, policyholders, and insurance producers in disputes both in court and before the Maryland Insurance Administration.
Ms. Lambert is the firm’s Co-Liaison for Harmonie, a national network of high quality law firms that serve the special needs of the risk industry, and was recently appointed to Harmonie’s Board. She can be reached by phone at 410-339-6759 or email plambert@pklaw.com.
