COVID Lessons for Employers
What a journey this has been for employers! While a solution to the COVID health crisis remains far from certain, there are certain legal lessons that most employers can take away from the impact associated with the pandemic. This is especially important, given the real possibility of a second wave, society getting back to the “new normal” (whatever that is), the opening of schools come the fall, and the associated possibility of a second shut-down (as frightening as that sounds). In other words, we could be living with this threat for a very long time, even if a vaccine is developed.
Ultimately, employers should be taking the time necessary to assess what worked well during the pandemic, and what needs to be addressed or adjusted going forward to deal with our “new normal”. So here are my key legal takeaways and lessons learned, based upon the work I have seen over the last 8 months:
1. Adopt and maintain health and safety protocols that continue to mirror current COVID based standards, including the way work is scheduled and performed in order to maximize social distancing. The reality is that these health and safety standards make good sense both from a workplace culture and economic perspective, and they inspire the confidence of your workforce. In addition, thought should be given to improved sick leave arrangements. Employees who are sick often come to work because they cannot afford taking necessary time off. We have learned that employees who come to work in situations where they may be contagious could have a dramatic impact on the overall operation, especially if a quarantine becomes necessary. Therefore, enhanced sick leave arrangements are a great investment in the business.
2. Develop the flexibility you need to manage your workforce. First and foremost, adopt contracts and policies that provide for the express right to lay-off your workforce and provide for temporary breaks from active service should the need arise. Without these provisions, employers still face the possible claim of constructive dismissal. I would suggest that the contractual provisions be extended to a broader group of employees – beyond hourly staff which are traditionally the focus of temporary lay-off provisions. If there is a concern in extending the provisions to management, then limit the ability to lay-off to pandemics and events that are unforeseen.
3. Speaking of contractual provisions, develop language in your contracts that permits changes to duties and schedules generally, especially in times such as these. Most of the constructive dismissal claims I have seen during the shutdown were not based upon the lay-off itself. They have been based upon changes employers have had to make to positions, duties, and schedules given operating requirements which arose because of the pandemic and the effects the pandemic has had on re-opening a number of businesses. By the way, it is not easy to amend agreements for existing employees. You will need to be mindful of the issue of “consideration” for the changes to be binding.
4. On the issue of recall from lay-off, develop clear protocols that deal with the expectations on return once a recall notice is issued. Employees should understand clearly the ramifications of failing to respond to a recall notice within a specific time frame. Define those time frames in advance. Explain the consequences of failing to return without a justifiable reason. I had many clients struggling with this issue as their companies began to open up – they simply could not get some employees back to work.
5. Challenge yourself to develop innovative and flexible remote work solutions. This involves building appropriate technology capability, as well as developing workplace policies that define key expectations, for things such hours of work (overtime rules still apply), productivity, and confidentiality. This also involves thinking through strategies to maintain work place culture and fully engaging the workforce. Zoom can be your best friend – learn how to fully engage it.
6. Keep the lines of communication open with your employees. We are all in this together and having well-informed employees who are comfortable going to their employer with questions and concerns may increase employee confidence and productivity.
We are not through this as of yet, and employers know there will be new challenges and issues to face going forward with a return to work, the opening up of the economy and our society. While there is no guarantee that a second wave will not shut us down again, employers who learn from experience, fully explore their options and plan for future possibilities will be in the best position to adapt and succeed.