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Back to Normal…or Not? A Year Into the Pandemic – What’s the Path Forward?
More and more people are getting vaccinated, and more places are opening up – is this the light at the end of the tunnel? Organizations everywhere are trying to balance the risks of the pandemic with the perceived ability to return to “normal.” Organizations need to consider:
- The current state of remote work
- Employment law considerations
- Returning to the office
- Workplace safety
- The COVID-19 vaccine
Remote work – here to stay?
Many organizations were forced to quickly shift to remote work as covid-19 shuttered workplaces. Some employers faced challenges in shifting to telework, while others found it to be a relatively smooth transition. One big question looming for organization is whether to return to the workplace, and if so, when, and if not, what does that look like?
Some organizations plan to utilize a hybrid approach to stagger in-person versus remote work, particularly to encourage social distancing if the office space tends to be pretty full when at capacity. Others, particularly larger companies, have relayed permanent remote work plans, such as Pinterest, who reportedly paid an astounding $89.5 million to break their lease last year. Some organizations are moving towards activity-based workplaces, which can include:
- Various areas designed for specific purposes
- Private areas and group gathering areas
- The idea is to provide flexibility at the physical workplace in addition to remote work as available options
- Think of this kind of like a hotel where you can move around depending on what you’re working on and what your needs are – some areas are quieter than others and more conducive for heads down type of work
- And other areas are better for discussion and live collaboration
Employment Law Considerations
Organizations should carefully consider various employment laws when managing a remote or partially remote workforce. Expenses and reimbursements are often a point a contention. To start, federal law doesn’t have an express requirement to reimburse for remote work costs. However, there is a rule that provides that employees cannot pay for work related expenses when doing so would bring the employee’s wage below minimum wage or any required overtime. Organizations should evaluate what would it take, in terms of equipment and supplies, to work from home, especially if any employee who makes minimum wage or close to minimum wage or has significant work-related costs they’ve paid for. Any business expenses that cut into min wage and any overtime may violate the federal Fair Labor Standards Act. For exempt employees, as a general matter and best practice employers should ensure that any business expenses do not cut into the minimum salary required for exempt employees, otherwise this risks losing the exemption which means the employee is now nonexempt and entitled to overtime. Additionally, in the area of expense reimbursements, employers need to be cognizant of any state or local laws that require more than this federal rule. Even if an organization is in a state that does not require reimbursement of work expenses, organizations may consider doing so anyways, in an ability to promote a culture of care. Lastly, even if organizations are still working remotely on a temporary basis, these businesses are typically saving money on at least some overheard such as maintenance, utilities, and supplies; some of those savings could perhaps be utilized on reimbursing employees for working from home.
What about workers’ compensation? First, workers’ comp definitely applies to both in person and remote employees. An employee who gets sick or hurt related to work or during work time is entitled to file a claim for workers comp. For example, an employee who trips over their computer cord or develops issues due to poor ergonomics at home resulting in back pain or maybe carpal tunnel syndrome, could be able to file a workers’ comp claim. Employers will want to ensure that their remote workers are working from a place that is safe and secure. One way to do this is to spell out some ground rules in a remote work policy or teleworking agreement. Remember that out-of-state employees may be impacted differently, and employers should be well-versed on the different state rules that may apply to overtime, meal and rest breaks, leaves of absences, and more.
Returning to the Workplace
Organizations should make an effort to understand both business and employee needs, weigh the benefits and risks of returning to the office, and may consider surveying employees on their return-to-work concerns. Overall, organizations should plan to follow CDC and local guidelines regarding social distancing, office capacity limits, masks, etc.
Some employees may not feel totally comfortable returning to the office, whether it be a health reason, scheduling conflict (children still remote learning, for example), or a health concern. Employers should keep in mind that when an employee’s health condition is involved, they need to pay special attention to the Americans with Disabilities Act (ADA), and make reasonable accommodations, if necessary. The CDC has identified certain health conditions that are at increased risk of severe illness from the virus that causes COVID-19, and those that might be at an increased risk for severe illness, which could come into play if/when employees return to the workplace. One of the most common requests from employees will likely be the wish to continue working remotely. Luckily, the EEOC has already provided guidance on telework as an accommodation. Employers will want to evaluate their general practices and provide clear guidelines of who, if anyone, can work remotely, and most importantly, needs to ensure it is consistent and fair when it comes to responding to these types of requests.
Returning to the Workplace – Safely
Most organizations will need to consider implementing a variety of safety protocols and measures. For example, should you require employees to double mask? The CDC recommends that double masking can be helpful if a disposable mask is worn underneath a cloth mask.
The EEOC has also released guidance that organizations should consider, as it relates for COVID-19. First, the EEOC notes that public health authority guidance is likely to change as COVID evolves, and the EEOC states that employers can and should follow the most current information for workplace safety – that means organizations need to keep on top of the latest updates and guidance from the health authorities
Now, what symptoms can employers screen for? The EEOC notes that organizations can rely on the CDC and other public health authorities and reputable medical sources for emerging symptoms. These symptoms can guide employers when choosing what questions to ask employees to determine whether a direct threat to workplace health and safety would be presented. However, organizations need to be really careful when it comes to medical inquiries – this is to avoid disability discrimination – so it’s quite helpful for employers to understand what they can ask without encroaching on ADA rights. And remember, all COVID-19 information, such as symptoms, temperatures and test results, needs to be kept confidential.
There are also a wide range of apps, gadgets, and wearable devices prompted by the pandemic, that organizations could consider using. These tools can assist with things like electronic contact tracing, temperature tracking, and enforcing social distancing (for example, some devices can alert folks when two people come within 6 feet of each other). Prescreening apps are also popular with some organizations whereby employees have to answer a questionnaire through their phones before coming to work. Other apps also track certain activities employee have engaged in to determine the risk level of the individual – and the technology can then indicate whether they’re clear to come in, they should stay home, or contact a health care provider. These COVID-related technologies can make safety processes at the workplace a lot more efficient – for example, instead of manually performing contact tracing by talking to individuals one by one, the app can display data to show who’s been near whom and who may need to quarantine as a result.
For companies that will provide desks or offices that are not specifically designated or assigned to individuals, there are also tools that can help inform employees what is available and where, and even recommend directions on how to get to the available desk to avoid gatherings and to minimize exposure. All in all, there are some very helpful technological developments that can help make it easier for organizations to keep the workplace safe and help businesses continue with minimal disruptions.
It may go without saying, but organizations should also ensure they have adequate signage to remind employees of hand-washing best practices, and may want to consider providing access to hand sanitizing stations as well.
The Vaccine – Are we back to normal…yet?
The vaccines are here! There are three types of vaccines currently available under the FDA’s emergency use authorization, including Pfizer, Moderna and Johnson and Johnson. Generally, most states are moving through the available doses and more folks are getting vaccinated.
One of the main questions employers have on this subject is: can we require the vaccine? The sentiment behind this appears to be that:
We want to make sure our workplace is safe and healthy
We’re afraid of being exposed at work
We’re tired of social distancing and wearing masks
The EEOC has published timely guidance on vaccines in mid-Dec which luckily for employers, provides some much needed direction. The EEOC doesn’t specifically say employers can or cannot require the vaccine, but the guidance presumes that employers can require it but must adhere to certain requirements. Of course, there are some significant caveats to this general rule, including accommodations that may be required in situations where an employee requests a religious or medical accommodation. For those organizations who choose to require the vaccine, they’ll need to figure out whether the time to get the vaccine and any related costs need to be compensated to the employee – this is going to vary depending on location, whether employees will go during work time to get vaccinated, and a variety of other factors.
Organizations should keep in mind that the CDC states that vaccinated individuals must still exercise standard pandemic precautions in public, which includes:
- Wearing a well-fitted mask.
- Staying 6 feet from people you do not live with.
- Avoid medium or large gatherings.
- Get tested after experiencing symptoms.
- Follow CDC and health department travel requirements.
This means that for work purposes, vaccinated employees may still need to take the same safety precautions as those that are not vaccinated with the exception of possibly avoiding quarantine after potential exposure. Remember, other state and local mandates may include additional requirements.
Ultimately, there is no “one size fits all” approach when it comes to returning to the office or continuing with remote work. Each organization will have to consider what is best for their business and workforce. But, the future looks bright – the vaccine is here, employees are returning to work, and life is returning to some semblance of “normal.” Organizations should take this time to critically evaluate what will support their business, how they can best support their customers, and how they can support staff by ensuring safety during these challenging times.
Published Date:May 18, 2021
Categories: HR Question of the Month