As states begin to relax their business restrictions in anticipation of an eventual resumption of normal operations, employers must make critical decisions now as to the focus of the enterprise as well as the reintegration of its employees in a post COVID world. Indeed, the former consideration may require wholesale restructuring of the business, as its “virtual footprint” becomes the principal means of generating revenue and managing the workforce.
Returning employees to work presents equally important business considerations that will require the introduction of new best practices in the form of a workforce reintegration plan to prepare employees for a successful and safe return. This proactive plan will necessarily include policies and procedures aimed at compliance with the new Covid-19 legal requirements mandated by federal and state law, as well as to adjust and adapt the workforce and the workplace environment to the new health and safety concerns and conditions of a post pandemic business.
OlenderFeldman covered many of these issues in its two-part series titled “Leveraging the Lockdown,” click here for Part I and click here for Part II and is providing additional guidance through its Art of the Restart series, which is available here: Part One, Part Two, and Part Three. Our Firm has compiled the following abbreviated summary of the most important aspects of this guidance below.
Restructuring Your Business
By now, most businesses have obtained their CARES Act loan and should be contemplating what their new enterprise looks like from a headcount and salary perspective to ensure maximum loan forgiveness. But loan forgiveness is not the primary focus of business planning efforts. Rather, the business needs to anticipate its ability to function in the “new normal” and build its return to work strategy around such guidance. Your business will then need to develop a rehiring plan based upon an audit of your current workforce to ensure that there is a business rationale behind the return to work of each employee. This analysis will also assist the business in establishing an objective, non-discriminatory basis for any selective rehiring as well as guide the business on the manner and method of returning employees to work. In developing this plan, employers will want to consider restructuring teams, limiting hierarchies, revising positions, reclassification (salaried vs. hourly, full-time/part-time), and staggered return to physical workspaces, if necessary, for business function or effectiveness.
Communication and Education
Once your business has a restructuring plan in the works, you will need to communicate the new focus of the business to the workforce, including expectations on return to work. Establish and communicate clear and effective policies that outline expectations and address employee questions about the future of the business and their roles. Explain how the business has pivoted and what the plan for the return of the workforce is upon resumption of business operations following the lockdown. Employers cannot afford “radio silence” about their plans, particularly if bringing workers back is a critical element of its recovery plan. Employees will most certainly be making their own contingency plans about return to work if they have been furloughed and employers may be in for a terrible surprise when attempting to bring them back only to discover that they have gone elsewhere in the absence of any belief that a position with their current employer remains a viable option. Needless to say, employers should not make any promises or commitments about return to work given present circumstances, but should provide some guidance as to whether prior held positions may become available when the business reopens.
The Creation of New Human Resource Policies
Employers must create new flexible policies covering use of paid time off, sick leave, remote work, and health and safety in light of new governing laws including the Families First Coronavirus Relief Act (FFCRA). The interplay between the FFCRA and other established laws such as the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA), to say nothing of the state variations on these laws, will force all employers to take a fresh approach with their leave policies. Businesses will need to learn how to handle requests for accommodations on a routine basis as workers adjust to new environments. New policies will need to be established for the use and maintenance of PPE gear and hygiene protocols in the office. Workers will also need to be instructed and trained in practices and procedures concerning social distancing and physical interactions within the workplace involving employees and members of the general public.
In addition, businesses will need to learn how conduct a “direct threat analysis” for any at-risk worker with a known health problem and an individualized assessment of the reasonable accommodation. Employees with preexisting disabilities may be accommodated in various ways, such as telework, modified work schedule, temporary job restructure, or paid/unpaid leave. Employers are cautioned not to treat certain individuals differently because they may be at high risk, such as pregnant or older employees. Further, employers should not unilaterally deny individuals to return to the workplace absent documented and objective medical evidence of a direct health risk.
New Workplace Health and Safety Protocols
Because the spread of the virus has been acknowledged by government health authorities as a direct threat to the workforce, employers are currently permitted to take employee temperatures as they physically return to work. In advance of returning to work, employers may ascertain whether any of its employees exhibit COVID-19 symptoms such as shortness of breath, fever, chills, cough, or sore throat. In addition, employers may inquire whether its employees have been in close personal contact with individuals diagnosed with the virus or traveled to COVID-19 hotspots within the past two weeks and determine standards for allowing them to return to work. Notably, if your business chooses to implement screening or testing, it is important to keep employee’s health information confidential and separate from employee’s personnel files.
To maintain social distancing between employees, clients and visitors, businesses should consider implementing some or all the below measures if possible and conducive to operations:
- Ensure daily personal and worksite sanitizing and cleaning;
- Prohibit employees from sharing work stations, phones or equipment;
- Develop one-way traffic patterns;
- Install barriers such as plexiglass between desks and cubicles in traffic locations;
- Provide and mandating use of PPE;
- Consider closing normal areas of congregation such as kitchen areas and moving to outdoor spaces for breaks and lunch hours;
- Limit or restrict access to visitors; and
- Consider halting or restricting business travel while monitoring CDC’s travel recommendations to determine whether business travel is necessary.
New Responsibilities for your Office or Human Resources Manager
In collaboration with your Human Resources department or representative, employers should establish and identify a workplace coordinator to be responsible for implementing, executing, and monitoring your return-to-work plan. The workplace coordinator should be tasked with communicating with employees and clients to ensure that all health and safety questions are answered; monitor evolving State directives; and keeping track of employee well-being, including contact tracing. If necessary, engage with a third-party vendor to train your staff on the return-to-work plan before employees physically return to the workplace.
Further Guidance on Covid-19 Compliance Issues
In the coming weeks, OlenderFeldman anticipates that additional guidance may be provided by the U.S. Occupational Safety and Health Administration, the Equal Employment Opportunity Commission and Department of Labor and their state analogues. Please continue to regularly check our website (www.olenderfeldman.com) for updated guidance and information.
As always, the Employment Practices Group of OlenderFeldman is available to work and guide you through the daunting challenges of managing your business in a post-COVID world. Please contact Howard Matalon () or Alex Umansky () for a consultation as to how to best plan for the rapid emergence of your business from the lockdown.