Hitting the Reset Button: Employment Law Issues with Re-Opening the Workplace

Hitting the Reset Button: Employment Law Issues with Re-Opening the Workplace

  • As employers reopen following the COVID-19 quarantine, an employer faces several challenges to trip up or opportunities to distinguish it from its peers
  • Employers need to pay attention to policies and practices that affect their employees’ work conditions to smoothen the return-to-work process

As we approach mid-May 2020 the economic shutdown has gone on for nearly two months. Many states indicate they have seen enough improvement in the public health situation to begin re-opening their economies to non-essential business. By taking a phased approach to re-opening, states are being cautious as to how they go about restarting business, and Syntrio feels you should do the same with respect to how you return to work. This article will review many of the significant issues your business will face in the coming weeks and months. In preparation for this step, it is a good idea to take refresher training on topics such as wage and hour, discrimination, and business skills as you begin to operate in a world with new rules and sensibilities.

Continuing Remote Work

Under the initial phases of economic reopening, a large number (if not all) of states strongly encourage employees to continue working remotely to the extent that they can. This means you will need to review and adjust your policy to ensure that employees understand that working from home is not only allowed, it is encouraged. You should also review your policies regarding accommodation for certain groups, as high-risk employees will likely need special accommodation to be able to continue to do their job remotely, even as your physical office space re-opens. Always be mindful of specific rules in the state orders, many of which will require you to accommodate employees who have (or suspect they may have) symptoms of COVID-19. 

Paid Leave Laws

During the COVID-19 outbreak, most states enacted laws requiring employers to provide paid leave to employees (and their families) who are impacted by the virus. As people return to work and begin to take vacations, they will be able to use paid time off (PTO) to do so. But you must be mindful of your state’s requirements for COVID-related leave and potential time off. Under federal law, the Families First Coronavirus Response Act remains in force and provides paid time off to help employees deal with themselves and family members when impacted by COVID-19 You most certainly have an obligation to comply with the requirements of that law, but it is also likely that your state has additional requirements to know.

Employment Policies and Agreements

Prior to the COVID shutdown, many non-traditional employees were operating under the terms of employment agreements (such as independent contractors). Likewise, many employment policies set the terms and conditions of a working environment that did not contemplate the circumstances we have faced over the past two months. Therefore, it is important to review all policies and agreements to ensure that they are both legally compliant with all recently enacted laws related to COVID and are up to date as to their scope and force. For example, if you had contractors working under agreements with terms that are going to expire, ensure that you work with those individuals to re-work the agreements to give you both the time needed to complete projects under the terms that you agreed to.

Discrimination Issues

When reopening your business, you may have to (or already may have had to) make difficult decisions about what portion of your workforce you can retain. In doing so, always be mindful that you have not selected an employee for termination, reduction in hours, demotion, or any other job-related condition on a basis that can arguably be attributed to a protected category such as age, race, religion, sex or others. All too often, well-meaning employers take employment actions in times of crisis that, while not intended to be discriminatory, has an impact on an employee that can be attributed to a protected class. For this reason, we suggest that you make your determinations as to who comes back to work and how much on protected class-neutral criteria. This way you are less likely to face a discrimination charge out of the gate. 

Safety Issues

Finally, employees are going to be on a heightened level of safety concern and insecurity when they return to work. Make sure you are compliant with all safety-related regulations. Check for guidance from the US Centers for Disease Control and Prevention (www.cdd.gov) and the US Occupational Safety and Health Administration (www.osha.gov) for guidance on safe workplace practices regarding COVID-19.

Complaints

Also be mindful of the whistleblower protections for employees who will undoubtedly be concerned about their safety and other business practices. Ensure that employees are reassured that complaints and concerns are welcomed, and that retaliation for any complaint of any kind will not be tolerated. 

Harassment Training

By paying attention to the aforementioned issues that your business may face in the coming weeks and months, you are more likely to have a smooth transition back to work from the COVID-19 quarantine. You should of course remain mindful of your obligations under state and local laws (if any) to keep up to date with your mandatory sexual harassment training. It may have been easy to forget the importance of conducting regular training during the pandemic, but now that employees are returning to work (and even in cases where they are remaining remote) state fair employment agencies will be directed to enforce these laws. 

If you are not current with your annual or bi-annual obligation to train your employees on the prevention of sexual harassment in the workplace, we suggest that you contact Syntrio for guidance. We also are available to provide training on the prevention of employment discrimination, wage and hour compliance, FMLA and leave-related compliance, and all other employment law issues your business may face now and into the future. 

Since 2007, Jonathan has practiced labor and employment law, with a focus on litigation, individual plaintiff and class action discrimination, harassment, and other employment-specific cases as well as focusing his practice toward advising employers on preventive practice. Jonathan has presented over 100 live employment discrimination and harassment prevention training courses across all 50 states.

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