Here’s what employers need to know to reduce their legal risks as employees start coming back to work in greater numbers and we settle into the abnormal “new normal.”
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This year has taken the trendy catchphrase “the new normal” to an unforeseen level.
“Employers are in a constant state of flux with the many new employment laws and regulations enacted in response to COVID-19,” says Susie Ingold, a shareholder at Burch & Cracchiolo and one of Az Business magazine’s Most Influential Women of 2019. “There is whole new level of vigilance required to not only ensure understanding and compliance with these new laws and regulations, but also to be flexible and supportive of individual employee needs in the context of an unprecedented health crisis.”
As businesses reopen and employees return to work, the question Ingold says she hears most often from clients is, “How do we do this?”
“The answer is, we don’t,” she says. “That is, we don’t return to the same workplace without first taking necessary steps to help ensure the safety and protection of our employees, clients and customers. With Arizona’s shutdown orders subsided, employees can be required to come to work — but employers must carefully navigate the risk of bringing employees back to work and, at the same time, mitigate that risk by adopting measures to promote a safe and healthy work environment.”
Mitigating risk
Ingold says an effective way to mitigate that risk is to track and follow official COVID-19 guidance concerning safe workspaces from the Centers for Disease Control (CDC) and the Occupational Safety and Health Administration’s (OSHA). Using these official guidelines, employers can develop response plans to reduce workers’ risk of exposure. Safety measures that may be contained in such a response plan include:
• Implementing prescreening procedures for employees attending work.
• Adopting and enforcing social distancing measures.
• Instructing employees to stay home if they feel sick or have any symptoms.
• Identifying high-risk employees and whether reasonable accommodations are necessary and can be made.
• Revising policies concerning schedules, leave, and working remotely.
• Implementing staggered shifts and extended “work from home” allowances.
“Clear communication to employees about the response and return to work plan is critical, as is the enforcement of the plan,” Ingold says. “A carefully crafted return to work plan means nothing if your employees aren’t following the protocols.”
But, as employees return to work in greater numbers, there will be more challenges to our “new normal.”
“We will continue to see more employees working remotely even after the pandemic,” says Andrea Lovell, a shareholder at Littler and one of Az Business magazine’s Most Influential Women of 2020. “While businesses and employees alike can benefit from increased flexibility and potentially lower overhead, employers will also face unique challenges.”
Other challenges
Lovell says cybersecurity awareness will be critical as remote workers access the company’s network — and confidential information — from their homes.
“Accurately tracking the time worked by remote non-exempt employees is also critical to ensure compliance with state and federal wage and hour laws,” Lovell says. “In addition, maintaining a clear company culture that encourages interaction and collaboration among remote workers — including newly on-boarded team members — will require careful thought and planning.”
Experts say working from home during the stay-at-home orders arising from the COVID-19 pandemic has also created a cultural shift in business.
“Already, Twitter has announced that even when the stay at home orders are lifted, it is allowing employees to work from home permanently if they choose to,” says Robert Reder, managing partner at Blythe Grace. “It’s also been reported that Apple, Facebook, and Google will likely revise their employment policies regarding working from home. This change will eventually trickle down to even small businesses, whose operations are in a single state. So, employers of all sizes should be prepared to look at their workforce and determine whether any of those jobs can be performed by a stay-at-home employee, or an independent contractor — which has substantial cost savings, such as the elimination of payroll taxes.”
Reder says having stay-at-home workers can substantially reduce the need for physical office space and the likelihood of viral transmission.
“Still, a business should also look at whether its workforce will be able to maintain productivity concerning at-home workers,” Reder says. “In that regard, employers should look at their policies to ensure that they contain procedures to secure production. Indeed, as productivity and project tracking services, like Slack, become more mainstream, employers will need to adjust their employment policies regarding employee hours, communication, and reporting.”
Balancing act
To balance all the changes coming with the “new normal,” Ingold says employers may also consider designating a channel through which employees can seek clarification, voice concerns or ask for exceptions to certain procedures.
“Revisiting your response plan week to week, and month to month, is also key in order to address issues specific to your workplace and as modifications become necessary with updated federal and local guidance,” she says.
When it comes to new employment laws governing paid and unpaid leave for certain COVID-19 related reasons, experts say employers must also navigate the risk of violating these new requirements and depriving their employees of necessary leave, whether paid or unpaid. This also opens employers up to potential legal claims and damages, Ingold says. Employers should make sure that they have professionals who are familiar with all new federal, state and local leave policies and determine how their existing leave policies correlate with these new obligations. Given the novel working conditions created by COVID-19, Ingold says employers may also want to update their employee handbooks and guidance accordingly.
“The coronavirus pandemic has caused upheavals in workplace practices, but employers’ emphasis on safety in the workplace is unlikely to disappear,” says John Lomax, a partner at Snell & Wilmer. “Some employers will point to the transition to remote working as a lasting change, but that change affects only certain industries. All employers and employees will not forget the hazard of infectious diseases and the steps to mitigate that risk. Over time, temperature screens, employee wellness checks, face masks, and social distancing may disappear, but infectious disease policies, hand sanitizers, disinfectants, and, hopefully, good social hygiene are here to stay.”
