As shelter-in-place orders enacted in response to COVID-19 are lifted throughout the country, companies have begun the process of returning their workforces from home back to the workplace. In order for employers to facilitate a safe return and be prepared to address the issues that return will undoubtedly generate, employers must now revisit, revise and, in certain circumstances, draft anew their pre-COVID-19 employment policies and practices. Creation and operationalization of an empowered Pandemic Response Team at the outset to establish a Return to Workplace Plan will assist in identifying, revising, drafting and implementing the policies needed in the new COVID-19 workplace, and will position the company to thoughtfully prepare to bring its employees back.
This Holland & Knight alert discusses five key steps in such a plan as well as provides a Return to Workplace Pandemic Response Checklist (see link under Step 5) that will assist employers in preparing to meet these challenges.
As employers plan their return to the workplace, a Pandemic Response Team should be created to drive, direct and communicate the employer's policy and practice efforts. Because the corporate world is not a one-size-fits-all proposition, an effectively designed Pandemic Response Team will depend on the entity's mission, size, structure and available resources. Team members may include an executive decision-maker as well as members of the employer's most significant groups, including legal (regulatory, employment and real estate issues), human resources (employee policies, practices and relations, benefits and training), information technology (telework, network administration and data security), facilities (landlord-tenant, environmental issues and workplace redesign) and public relations (internal and external). These Team members may be tasked with staying updated on a daily basis on federal, state and local government mandates and guidance that may result in repeated policy changes over time.
Employers with multiple worksites may also wish to consider the creation of location-based groups to support the Team's efforts at the local level. Depending on the employer's local footprint, these groups may include local legal counsel, management representatives and staff tasked with staying up to date on state and local mandates, implementing policies and practices, responding to employees' policy and practice-related questions and concerns, supervising workplace redesigns, and enforcing social distancing mandates and similar requirements.
Prior to undertaking its review, the Pandemic Response Team should agree on the role and assignment for each Team member, including specific policies or policy areas for review. The scope of the Team's review will depend on a number of relevant factors. Applicable federal, state and local law generally should be considered, particularly as related to the employer's total number of employees, industry and geographic locations. In addition, the Team may wish to take into account:
Issues relating to workplace culture and corporate identity may also come into play. Some employers already utilize robust and expansive workplace policies. However, if introducing a number of new policies and protocols is contrary to an employer's culture or past practice, the Team may wish to consider how to implement changes in a way that anticipates and addresses the corresponding culture shock.
A timeline for completing the review and for implementing new and revised policies is useful to keep the Team on track. Pandemic conditions and related government guidance and regulations are constantly evolving. Accordingly, the Team should consider establishing a near-term deadline to ensure that the evaluation is completed and identified changes are implemented within a time frame when such changes are still relevant. Depending on the size of the Team and available resources, it may be necessary to prioritize certain areas for review over others. If constraints on time or resources require significant departure from the attached checklist, the Team should consider consulting with legal counsel to understand the potential corresponding risk of liability.
The Pandemic Response Team should begin its review by identifying existing policies, practices and protocols that may require revision as employers return employees to the workplace. Policies, practices and protocols that most likely warrant revision include those relating to:
Typically, these policies and practices are addressed in an employer's personnel policies or employee handbook, but the Team also should give consideration to other employer documents such as hiring and onboarding materials, employee training materials and employment agreements. In those workplaces with union representation, the Team should ensure that any changes comply with the duty to bargain and meet collective bargaining-related obligations, as well as comply with shutdown and return-to-work agreements.
In the course of its Step 3 review of existing policies, practices and protocols, the Pandemic Response Team will undoubtedly recognize the need to draft entirely new ones to address COVID-19's impact on the workplace. The following are key areas for consideration:
In the process of finalizing revised and new policies for implementation, even though policies may require differences based on the nuances of state and local mandates, care should be taken to ensure that there are no material inconsistencies or conflicts between policies prepared by different Team members. Prior to implementing revised and new policies, any implications for other existing policies should be assessed. For example, a newly implemented telework policy may have implications for an employer's information security policy or business expense reimbursement procedure.
The clear and consistent communication of new and revised policies, processes and protocols is critical. One approach is for the Pandemic Response Team is to prepare a brief summary of material policy changes to provide to employees, along with a copy of, or link to, the updated policies. The use of a policy acknowledgment form or another process for employees to acknowledge their receipt and understanding of the new policies is useful.
Given the unprecedented nature of the pandemic and its impact on the workplace, employees will likely have questions about the application of new and revised policies. Designating a Team member to evaluate and respond to such questions (or to assist Human Resources in responding) can help ensure consistency in interpretation and enforcement. Having a Team member monitor employee questions and concerns can also help the Team identify those policies and practices that that may require further adaptation or new protocols that may be needed.
In addition to monitoring employee response, the Team will also need to monitor emerging public health guidance and legislative developments. A designated Team member should review the websites for the CDC and local and state government offices on a daily basis to stay abreast of any changes in workplace guidance. The Team should also identify and monitor any industry-specific resources to ensure it is aware of best practices that may be unique to the employer's business. By complying with government-issued guidance and adhering to industry-specific best practices, employers can demonstrate they are taking reasonable steps to return to "normal" in a way that prioritizes employee health and safety.
Finally, employers need to be prepared for the possibility of restrictions tightening again in the event of a localized outbreak or increase in COVID-19 cases. Building flexibility into workplace practices and protocols to provide for quick adjustments as needed is ideal. The possibility of rapid changes with little notice should be clearly communicated to all employees to encourage their maximum cooperation and flexibility for the duration of the pandemic.
Now that employers have reviewed the five steps, they can use this Return to Workplace Pandemic Response Checklist to track their progress and help meet the considerable challenges of bringing employees back to the workplace.
States are easing or phasing out their stay-at-home orders. Nonessential businesses will begin to reopen and their employees will return to work. Many essential businesses that have continued to operate likely will see an increase in the number of employees returning to the workplace. But concerns about transmission of COVID-19 remain. Many states have or can be expected to impose significant obligations on employers to ensure that their workplaces remain safe and that the risk of COVID-19 transmission is minimized. This laudable objective presents many challenges to all employers.
As shelter-in-place orders are being lifted and employers are permitted to reopen their workspaces, they will need to do so with caution while wading through a patchwork of local, state and federal requirements and understanding what guidance or recommendations are mandatory.
To assist companies in their efforts, Holland & Knight has created a series of alerts focused on return-to-work issues. In addition, as state and local governments continue to issue new orders for May, Holland & Knight provides updated summaries of state and local orders to help companies keep track of regulations and requirements that are essential to all businesses.
Previous alerts in our COVID-19 Return to Work Series can be viewed below.
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DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the authors of this alert for timely advice.
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