Employers, like everyone else, have been forced to make significant adjustments as a result of the COVID-19 pandemic, with many having to reduce operations or close entirely. Now, employers that are in the process of trying to reopen are required to adapt even further given the new landscape to which they are returning.
At the forefront of most employers’ minds is the issue of how to legally (and safely) reopen in the first place. Given the varying mandates and guidance being issued by federal, state and local governments across the country, these answers will largely depend upon where the employer is located. Many state and local governments have regulated when certain businesses are permitted to reopen, and what conditions are needed in order to do so (e.g. only after certain minimum safety standards are satisfied). On the federal level, OSHA’s general duty clause requires most employers to ensure that the workplace is free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees – potentially including COVID-19. Employers need to mindful of these legal issues when creating and implementing their reopening plans.
Yet, physically reopening is only one step in the process. It is equally significant that employers prepare for how they will need to operate once they do reopen – in particular, with respect to their employees. If they are not already legally required to do so), employers should strongly consider providing additional employee training upon reopening. Training provides employers with the opportunity to help reintroduce their employees into the workplace with tools to help them adjust to these new circumstances. Topics will certainly be dependent upon the employer’s specific business and operations, but important issues include safety standards and expectations in the new workplace as well as how to handle customer interactions in the current environment. Employers can also take advantage of these trainings to help address other workplace topics, including pre-pandemic issues as well as other policy changes that have since been implemented.
As employers modify their workplaces, it is also imperative that they consider the adjustments employees are having to make in their own lives. Employees may face various challenges with being able to return to the workplace, including childcare hardships, medical concerns or the need to care for family members who have become sick with COVID-19. It is critical that employers pay close attention to these issues as they can implicate various leave and/or accommodation rights under new laws like the Families First Coronavirus Response Act (FFCRA) and existing laws such as the Family Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA), as well as other state and local laws. Employers should also be sure to review their leave and accommodation policies for compliance with these laws. Even if these laws are not implicated, many employers may want to consider offering some form of flexible work arrangements to their employees. While not required, doing so can often help maintain a productive workplace and aid in maintaining employee morale.
Many employers will likely continue to offer some remote working arrangements for at least some period of time even after reopening. Yet, remote work presents its own set of issues for employers – especially where most of their pre-pandemic policies were not designed with remote work in mind. For example, remote work arrangements may impact wage and hour issues concerning paid time off, meal breaks, travel time, expenses, attendance, work schedules, etc. Employers must also strictly enforce their timekeeping policies for non-exempt employees and take steps to prevent them from working “off the clock.” Even with the best intentions involved, off-the-clock work can lead to significant legal consequences for employers. All of this is true even when employees report to a physical location; but these issues can be further complicated by remote work arrangements.
Ultimately, we are all quickly trying to adjust to new changes that were not necessarily anticipated and it should be expected that employers are going to experience some bumps in the road along the way to reopening. Therefore, it is important that they do their best to be proactive in trying to address these potential issues – their policy reviews and consultation with their attorneys are sure to help.
Sean P. O’Connor is a partner, and attorney at Boston’s elite employment law firm, Morgan, Brown & Joy. Sean P. O’Connor represents both public and private sector employers in numerous industries on the full range of labor and employment matters. @morganbrownjoy
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