With the easing of restrictions surrounding the Covid-19 outbreak, organizations are starting to bring employees back into the workplace. A successful re-entry program will ensure the safety of company personnel and the public, obviate charges of discrimination and invasion of privacy, and avoid actions that inadvertently violate federal, state, and local employment laws. Employers should set a positive tone to motivate their personnel in a difficult environment.
For the Kentucky Cabinet for Economic Development, working from home has brought an unexpected benefit: more efficient work procedures. “Our staff, partners, and clients have adapted well to working remotely,” says Jack Mazurak, the Cabinet’s communications director. “The pace of progress has even increased in some cases, especially for projects that might have otherwise seen multiple in-person site and community visits.” Video conferences, telephone and e-mail correspondence — common forms of online business interactions — have in many cases proven more efficient than time-consuming personal meetings for the 85 percent of the Cabinet’s workforce that has worked remotely.
That’s not to say, of course, that the transition to off-site operations was a cakewalk. “The biggest challenge has been making nearly every part of our process digital,” says Mazurak. “That goes beyond switching to video and conference calls with prospects and consultants. It also means working with our local economic development partners and utilities to provide detailed photos and drone footage of sites and buildings. When an in-person visit becomes necessary, we now schedule it with a smaller group.”
A Phased Return
Given the generally positive experience of remote operations, it’s no surprise that the Cabinet is not in a huge rush to bring people back into the traditional workplace. Indeed, the favored approach is just that kind of phased process championed in the “Healthy at Work Plan” released by the state’s Governor, Andy Beshear. “Government offices and agencies were able to begin reopening at a lower capacity May 18,” says Mazurak. “They needed to first meet requirements to protect workers and those coming into the offices while reducing the spread of the coronavirus.”
For the foreseeable future the Cabinet will continue to promote audio and video conferences in place of in-person meetings, when possible. Safety experts generally applaud the kind of gradualism being adopted by the Kentucky Cabinet. The risk of infection in any office setting will increase if too many people crowd into the workspace, placing themselves and others at risk. Many employers are adopting a staged flow of return, even going so far as to require eager volunteers to obtain clearance from supervisors before returning. Others are separating their staffs into two or more teams and allowing one group in the office at a time.
“Employers should consider the feasibility of staggering employees’ shift times or of establishing an alternating workday or workweek schedule,” says Susan Gross Sholinsky, vice chair of the Employment, Labor & Workforce Management practice of Epstein, Becker Green in New York. “They should be flexible and creative in developing policies that maximize productivity and ensure the highest levels of safety,” she says.
If some employees are too eager to return, others will be fearful of doing so too quickly. Allowing those individuals to continue to work remotely may help obviate safety risks. “If your business is set up for some employees to work from home, then consider allowing them to continue to do so,” says Bill Hagaman, CEO and managing partner of Withum, one of the largest accounting and advisory firms in the nation. “Give special thought to parents of school-aged children in states where schools have shut down for the remainder of the year. Remote working capabilities can also protect employees who take public transportation to work by limiting their exposure.”
Employers need to avoid intentional or nonintentional discrimination in the pool of people returning to work. “When everyone is not recalled, some people are laid off,” says Bob Gregg, co-chair of the Labor & Employment Law Group at BoardmanClark LLC, Madison, Wisc. “The demographics of the exceptions should be worked through,” he says. There should be no pattern by age, disability, race, or gender.
Many employers are adopting a staged flow of return, even going so far as to require eager volunteers to obtain clearance from supervisors before returning.
Particular care should be taken if someone in a managerial role is overheard saying the pandemic has created a golden opportunity to not bring back a “difficult” employee. “You have to take a step back and figure out why the employee is labeled difficult,” says Gregg. “Is it because of poor performance, or because they have spoken up on protected matters concerning safety or employment?”
The law explicitly prohibits adverse actions against anyone who has taken time off as a direct result of the Covid-19 outbreak. “Employers may be subject to retaliation claims when employees are terminated or otherwise subject to adverse employment actions after they have taken sick leave, a leave of absence under the Family and Medical Leave Act (FMLA), or under a Covid-19-specific law such as the Families First Coronavirus Response Act (FFCRA),” says Sholinsky.
The Americans With Disabilities Act (ADA) and equivalent state and local laws create an especially hazardous legal terrain. An employer should not deny a request to work from home if that arrangement would be a reasonable accommodation for a Covid-19 related disability.
“There may be a charge that the employee should have been allowed to work remotely if that individual has a compromised immune system or a condition identified by the CDC as one that would make the employee more vulnerable to being sickened by Covid-19,” says Sholinsky.
Ironically, the prevalence of remote work arrangements in recent months may have weakened employers’ traditional legal defenses in this area. “Given that employers allowed people to work from home for so long during the pandemic, it may be much more difficult to claim undue hardship as a basis for denying a request to do the same as an accommodation under the ADA,” says Gregg.
It may be wise now to record any inefficiencies that have arisen from recent work-from-home activity. “Waiting to document difficulties until after a request for continuing home-based work is made will seem like an after-the-fact justification,” says Gregg. “That carries much less weight with investigators or courts.”
The ADA legal coin has an obverse side. “Some employers may decide to keep people with underlying conditions, the at-risk folks, out of the office,” says Gregg. “The fear is that if they come back, they will be more susceptible to catching the virus with a more serious result.”
Yet excluding at-risk people can be tricky. “Who is at risk?” poses Gregg. “Anyone over the age of 60. So, the employer is tempted to say, ‘Older people cannot come back.’ Well, that means they cannot earn money and that can create an age-discrimination issue.”
A Positive Tone
Creating a safe workplace is one thing. Building the trust of employees is another. People must understand that everything possible has been done to protect their health and safety. “Transparent communication is critical right now,” says Hagaman. “Employers need to prevent confusion among their teams by answering their questions before they re-enter the workplace.”
Good communication can calm fears. And given the negative emotions that have surrounded the Covid-19 outbreak, employers should try to present those communications in a forward-looking spirit. As the Kentucky experience suggests, the pandemic might present organizations with the opportunity to retool their operations, find new ways to work more productively, and utilize technology more efficiently.
“We should create new policies and procedures in response to the pandemic, as we do when faced with any obstacle or challenge in the business world,” says Richard Avdoian, an employee development consultant in Metropolitan St. Louis. “We are always looking for ways to enhance our services. This is another opportunity to do so.”