The COVID-19 pandemic has put unprecedented strain on organizations of all sizes across all industries. The uncertainty of the “new normal” is leading some employers to consider extreme, and often unnecessary, new policies in anticipation of the eventual return to work. To properly navigate the complexities of these novel COVID-19 employment issues, you need innovative but practical solutions.
In response to the challenges that employers now face, McDermott is offering a six-part webinar series that will take a deep dive into all of the issues at stake–from workplace safety to employee privacy, as well as strategies to mitigate risk and respond to the inevitable surge in litigation. By the end of our program, you will possess the tools necessary to bring actionable solutions back to your organization and protect your most critical assets: people and reputation.
The first module in our toolkit focuses on transition plans for employers preparing to reopen.
1. Creating a transition team is an important first step when preparing to reopen to ensure that you are safely resuming operations and protecting your employees and customers. The team will depend on the size of your organization as well as its structure, line of business and operations and should be cross-functional. For example, the team could include individuals from Human Resources, Communications, Operations, Facilities/Maintenance, and Upper Management. The team should consist of individuals with the necessary insights to proactively issue spot. Legal is also critical to the team to advise on how to strike the balance between legal compliance and practical, business-driven realities. With constantly evolving federal, state and local guidance, companies should rely on in-house counsel as well as outside counsel to navigate the legal landscape and help draft plans that will mitigate any potential risk of litigation.
2. Having a transition plan will help your business adjust and respond to the short-term and long-term impact of COVID-19 on your workplace. In an informal poll of our audience, more than half of respondents do not have a written plan yet in place. Companies should be aware that many states as well as local governments are now requiring a written return to work plan as a condition of reopening. Written plans also help you prepare for effective crisis management and send a clear message to employees and the public what you are doing to keep everyone safe.
3. A written return to work plan should focus on safety, staffing, and a timeline to reopen. Your primary objective is the safety of your employees and customers, service providers and anyone else that enters the workplace. Local laws and ordinances may require specific procedures around social distancing, workplace configurations, use of PPE, etc. In addition, depending on circumstances and business demands, it may not make sense to recall all workers at the same time. Also be careful to use objective factors when deciding who comes back to work to avoid disparate impact on certain groups (such as those with preexisting conditions or older workers). And finally, multistate employers will need timelines that are location-specific—one size does not fit all—outside counsel can help you navigate evolving stay at home orders, reopening guidance and other obligations you are subject to as an employer to ensure that you are prepared to meet the challenges of reopening.
4. It is critical that you review and if necessary, revise, your existing employment policies for compliance with COVID-19 safety guidelines and local, state and federal guidance. In our audience poll, more than 50% of respondents indicated they have not audited their employment policies since the start of the pandemic. Now is the time to review your employee policies, such as expense reimbursements, reporting procedures for worker safety complaints and attendance, and craft new policies or specific addenda that address COVID-related issues applicable to your industry. Telework policies in particular should take steps to comply with wage and hour requirements and timekeeping for non-exempt and some exempt employees, including enforcing meal and rest breaks and overtime approvals. As an alternative to permanent policy adjustments, employers can consider including temporary COVID-19 addenda to their current policies.
5.When implementing new COVID-19 related policies and protocols, it is important to make clear that failure to comply is a serious violation of the company’s code of conduct. Employers should share their policies with employees and clearly define any disciplinary action. Examples include failing to follow health screening procedures or PPE requirements. However, employers should also be mindful of retaliation and potential discrimination against employees as well as potential employee management issues.