As states take measures to reopen, companies are balancing the desire to get business back on track with the implications of doing so. How can organizations ensure employees’ safety? What if people refuse to come back? What legal rights do both sides have?
“I’ve talked to leaders in every industry, from manufacturing to finance, who are trying to plan for this,” says Mark Zides, founder and chief executive officer of CoreAxis Consulting. “The tricky part is that each scenario is unique, and what’s right for one organization won’t be for another, even if they’re in the same industry.”
“As with any business issue, organizations should strike the best possible balance among various key objectives, which are sometimes in competition with one another,” says Gregory Manousos, partner at the labor and employment law firm Morgan, Brown & Joy in Boston. Although this balance is a delicate one, there are four steps organizations can take to prepare employees to return to work fairly and safely:
1. Stay Informed
The news changes every day — sometimes multiple times every day — and so do federal and state guidelines. Staying informed not just on your state’s or municipality’s recommendations but also on broader national trends will give you the most foresight into a potential timeline and approach to returning to work. It will also increase early awareness about trends that might delay a reopening, such as a spike in confirmed cases or casualties.
“In terms of when and how to reopen, keep abreast of the latest guidance and directives from federal, state and local authorities,” says Manousos. “Acting in accordance with these directives is likely the best strategy in keeping employees safe while also limiting legal exposure. It will be more difficult to mount a legal challenge to a decision made by an employer who was following the most up-to-date guidance from national and local public health and governmental authorities.”
Manousos recommends referencing the following U.S. sources for guidance on best practices related to restrictions and employee rights:
- The U.S. Department of Labor for explanations of new laws governing paid leave and other resources for employees impacted by COVID-19.
- The Centers for Disease Control and Prevention (CDC) for regular updates on public health advisories and best practices.
- The Equal Employment Opportunity Commission (EEOC) for guidance on managing employees and avoiding discrimination during the pandemic.
- The Occupational Safety and Health Administration (OSHA) for occupational safety and health best practices by industry, including guidance based on degree of potential exposure to the virus.
- State Attorneys General Offices for information on your state’s furlough, wage reduction, layoff, and other wage- and hour-based principles.
2. Have a Realistic Plan
It’s safe to say that a return to work won’t mean a return to normalcy; the workplace we knew before the pandemic might still be months, if not years, away. For the safety of the company and its employees, it’s critical to have a comprehensive plan in place that takes both sanitization and social distancing into account and to clearly educate employees on it.
As essential businesses have done, your organization will need to enforce strict cleaning and disinfecting protocols that go well beyond standard pre-pandemic office cleaning. Employees should have easy access to hand sanitizer, soap, disinfectant wipes and non-medical masks, and they must know how to use them effectively. Although best practices have been widely circulated, it’s important to reeducate employees before they return to work.
Additionally, your organization should structure the work environment to allow at least six feet of space between people at all times or at least whenever it is possible and reasonable to do so. Whatever your physical environment looks like, train employees appropriately on proper measures for maintaining social distancing at work.
Finally, in light of the community spread of COVID-19, the EEOC is allowing employers to take all employees’ temperatures. If your company chooses to implement temperature checks (keeping in mind state and municipal guidelines), Manousos recommends these steps to avoid violating employees’ rights and privacy:
- Documenting an explicit process, including where testing will take place and what the threshold “problematic” temperature is (the CDC recommends 100.4°), and sharing it with employees ahead of time so they know what to expect.
- Testing all employees rather than only some, to avoid discrimination claims.
- Providing proper training and equipment to test administrators and ample social distancing space for employees.
- Keeping a confidential log of test results that is not associated with employee personnel files.
- Considering compensation for the time spent waiting for testing and being tested, particularly for hourly, non-exempt employees.
These fundamental workplace changes can be difficult for employees to absorb, a simple email or prerecorded video can be overwhelming and have limited impact. As a learning and development (L&D) leader in today’s world, it’s important to educate your people in a way that cuts through the noise.
“You can’t put a few slides together explaining these seismic changes and expect everyone to comprehend them,” says Zides, who has been helping companies create customized learning and development solutions for nearly 20 years. “Immersive, innovative solutions that are specific to your company’s needs are the best way to fully engage employees so the new standards and processes really sink in.”
Developing a tailored program to educate and prepare people for the “new normal” will pay dividends in ensuring that they follow protocols to keep the workplace healthy and low-risk.
3. Foster Two-way Communication
Nobody — even science’s most brilliant minds — knows what reopening the country will bring. That uncertainty breeds anxiety, which can be detrimental to productivity and morale. In managing L&D efforts through this transition, it’s critical to be transparent about decision-making and timely in your communication so that employees don’t feel left in the dark about new policies, procedures and timelines.
But the equation works both ways. “Regular and open communication by employers and employees is critical,” says Manousos. “The most successful outcome will be one in which both parties recognize the essential needs of the other and work to find a resolution that works best for all.”
What does this communication look like in practice? When deploying learning and training content, include the rationale behind decisions within the context of the health of the business and employees. Invite feedback, and ask employees to be candid about the reasoning behind their concerns or requests. Fostering this type of two-way dialogue will ensure that you understand where employees are coming from and will make them feel that their voices are heard, which further mitigates potential legal conflicts.
Zides recommends incorporating collaborative group spaces into virtual training sessions so that as employees internalize company decisions and updated procedures, they have a platform to ask questions and provide feedback. This platform, paired with regular one-on-one meetings with direct reports, goes a long way in quelling uncertainty, frustration and doubt.
“Giving employees the opportunity to ask questions in real time, as they’re processing the decisions and new guidelines, ensures nothing is left on the table and that everyone is on board,” says Zides. “This is critical for engagement, productivity and, in today’s world, physical health.”
4. Prioritize and Be Flexible
In weighing what’s best for the company and what’s best for employees, you can expect to encounter some tension. You may find that employees are wary of returning to work or are unable to do so due to child care and other caregiving responsibilities. Flexibility is your ally, Manousos says.
Work with leaders to understand their priorities. Identify which functions and employees must be present in order for your business to run and what education they will need before returning to work. Will their jobs need to change? If so, what training will they need?
If an employee is deemed essential, Manousos says, it’s reasonable to require them to come to work — but with a few important caveats. Employers should ask the following questions before making a decision:
- Does this person have an underlying condition that could compromise his or her health?
- Has this person been exposed to or sick with COVID-19?
- Is this person the only person who can perform this function, and is there anybody else who is at less risk and/or has fewer reservations about returning to work?
Regardless of industry, people are a company’s biggest asset. As you plan a return to work, continuing to keep their physical and mental well-being top of mind is essential to ensuring the most seamless transition possible. Knowing their rights — and yours — and having an informed, realistic plan, an open communication strategy and a rational approach that allows for as much flexibility as possible, will help keep morale and productivity high so you can return to work as a stronger organization than ever before.