The COVID-19 pandemic has forever changed the way many businesses will function both now and in the future. Even once they begin to resume operations in some form, offices, retail and service industry operations, industrial facilities, construction sites and more will look dramatically different than they did two months ago.
However, with many states beginning to introduce plans to reopen their economies, all businesses must begin to think about what their “Back-to-Work” programs will look like once lawmakers give them the go-ahead. The unfortunate reality is that welcoming back employees won’t be as simple as flipping a switch.
At Buchanan, our attorneys are working with a variety of businesses across industries and sectors to develop fully customized Back-to-Work programs for their workforce. These programs cover everything from ensuring regulatory compliance and installing social distancing guidelines, to managing technology issues and enhancing employee morale.
Prior to developing and implementing one of these programs, there are a number of considerations to think about and difficult decisions to make, many of which are completely new to most traditional businesses. Below are 10 considerations we’ve come across that every business must take into account before getting a back to work.
1. Defining what “Back to Work” means for your business
Even if state regulations begin to allow companies to return to some form of normalcy, it may not make sense for all businesses. Some companies transitioned easily to remote work environments, while other companies may have fully suspended operations for weeks or more and are much more desperate to get employees back to the office, facility or job site.
Companies should start by figuring out how to maximize output in light of the changing mitigation requirements. In some instances, this may require them to return workers immediately. But, how will they choose who “comes back” first? Will they choose by skill set, department/practice area or another factor? Will they stagger returns and schedules so some employees return to work on Mondays, Wednesdays and Fridays, while others come in on Tuesdays, Thursdays and Saturdays? Of course, these decisions must be made legally, in a nondiscriminatory matter and in compliance with applicable wage and hour laws.
2. Complying with federal, state and local regulatory changes as a result of COVID-19
At the federal, state and local level, lawmakers have introduced new regulations to keep people as safe as possible during the COVID-19 outbreak. Temporary or not, these new laws have altered the business landscape and, in many instances, may run counter to current company policies and employee procedures.
Ensuring compliance with these new regulations is not only a safety issue, but a legal one as well. What updates must be made to workforce guidelines, including sick leave and other leaves of absence, to meet these new standards? What new policies, such as respiratory protection programs, need to be drafted? How should these changes be communicated with employees? What happens when lawmakers introduce new regulations in a month or week that may force companies to reexamine their procedures all over again? Who’s keeping track of these changes? Having government relations expertise and compliance experts to rely on is perhaps more important now than ever.
3. Ensuring social distancing and general workplace safety with proper protections
Protective face masks and maintaining six feet of distance between each other have become part of the new norm when leaving the home. This may be the case for some time.
How can office spaces, facilities and other job sites ensure physical distancing guidelines are maintained and employees are kept as safe as possible upon their return? Does it force a change in the way offices are laid out and facilities and job sites are designed? Are all in-person meetings suspended? Similar to staggering employee schedules, should companies plan for a reduction in productivity and output for the sake of physical distancing? Our team is currently working with infectious disease experts to develop and implement recommendations for best practices and effective mitigation measures in the workplace.
4. Enforcing compliance with new protocols while avoiding potential for discrimination and other legal issues
Typically, employees will agree to some set of guidelines when they begin working for a company, whether part-time, full-time or otherwise. And while COVID-19 will mandate that these policies are updated to account for this new reality, there are questions as to how these policies are enforced and what the ramifications of disobedience are. Is termination a fair (and legal) consequence of noncompliance? What about employees with disabilities who many not be able to easily wear protective face masks or comply with new policies? Are at-risk or vulnerable populations told to stay home, and are there any possible issues with discrimination as a result? There will no doubt be an uptick in workplace lawsuits that come from misguided policies in the aftermath of COVID-19, so it’s critical to be thorough when considering any changes to employee guidelines.
5. Evaluating COVID-19 testing capabilities and mandates
As other countries have shown, proper testing and monitoring of symptoms has proven to be effective in managing this outbreak. What can employers do to play their part and minimize the risk of outbreak at an office, facility or job site?
Some employers may want to consider measuring employees’ temperatures before the individual enters the facility and assessing symptoms prior to them starting work, others may be required to. Additionally, what should be asked of employees when it comes to regular self-monitoring? How can this be accomplished under the supervision of their employer’s occupational health program? Is taking an employee’s temperature a violation of privacy or employee policies?
6. Following CDC and Department of Health protocols
The Center for Disease Control and Prevention (CDC) and local Departments of Health have been very proactive in offering guidance to employers and individuals on how to prevent the spread of infection and limit the chance of contracting COVID-19. Who within a company will be in charge of enforcing these guidelines regarding sanitation, regular cleaning and employee hygiene? How will these guidelines be monitored? What qualifies as sanitized?
7. Protecting a business from liability risks
Is an employer liable if an employee, customer or client contracts COVID-19 while on company premises? Can you make business invitees sign liability waivers? Is it possible to prove that an individual contracted the virus at a particular time or place? What happens if there’s a confirmed case of COVID-19 in the workplace? What will be done to ensure the safety of others at the worksite? Are employees mandated to quarantine for a period of time? And are they compensated for that time? How and when are employees returned to work after an outbreak? These are all questions few employers have had to ask themselves before, but it’s critically important to have a plan.
8. Managing challenges with compensation and benefits, including contractual issues
Unfortunately, many companies have already been forced to deal with significant layoffs or furloughs as a result of COVID-19. Still, new challenges lie ahead.
Wage and hour rules will continue to evolve as we’ve already seen with changes under the Families First Coronavirus Response Act (FFCRA), which stipulates employers may now need to provide certain paid leave to non-exempt employees. What becomes of agreed upon compensation in light of new financial challenges companies face? How are employment contracts evaluated and managed? Are employees paid for the time spent waiting for their temperature to be taken? Can I reduce the salaries of my exempt workers because they are working fewer hours? What are the legal ramifications of violating employment contracts for reasons including safety and financial instability?
9. Communicating effectively with a workforce and addressing employees’ issues before and after they return to work
There are a lot of changes on the horizon for employers and employees alike, and communicating those changes effectively will be critical to ensuring compliance and acceptance of the new workplace norms.
Many workers may be hesitant to return to their workplace – how should those situations be handled? What processes are in place for employees to share their concerns and feedback both before and after they return to work? How are these issues addressed?
On a lighter note, are there ways in which employees can be social and interact with each other in a manner that boosts morale without compromising physical distancing guidelines?
10. Creating a decision-making committee or task force
No single individual should be expected to make all the decisions above. It requires input from nearly every aspect of an organization – HR, IT, Legal, Operations, Risk Management, Facilities, etc. To make sure these decisions are made soundly and swiftly, it may be beneficial to establish a committee to evaluate the circumstances and conditions related to all Back-to-Work strategies that includes representation from across the organization.
These considerations are just the tip of the iceberg for businesses as they begin to navigate the process for bringing employees Back to Work. This is all unprecedented. And because of that, embarking on this process is not something that should be done without proper legal counsel who can guide companies through potential pitfalls and legal hurdles. The Labor and Employment team at Buchanan can help your company think through these issues and develop customized solutions for your business.