Given the lack of clear official guidelines over how employers can best transition out of lockdown, it appears the key challenge they face will be in balancing the desire to get people back to work with keeping them safe.
Such a task will undoubtedly be far from easy, not least because the decisions taken around how to re-open offices and other sites will inevitably vary based on the regulations found in different geographic locations and jurisdictions as well as other issues, such as population density levels.
As a result, says Kenneth Silverman, a partner at US law firm Olshan Frome Wolosky, which is a member of the Globalaw international legal network, a good starting point for employers in tackling the issue is to review all of the pertinent legislation, guidance and recommendations they can get their hands on in order to “effectively revise, create and implement policies”.
To this end, a good number of companies have formed committees with representatives from IT, security, legal, HR and benefits administration to coordinate the return-to-work process and communicate expected next steps. Such activity includes:
- Conferring with landlords and operators of co-working facilities to determine what safety measures they intend to employ;
- Determining how to accommodate employees who are concerned about returning to work;
- Evaluating how to handle interactions with customers, vendors, visitors and clients and assess the necessity for employee travel.
But there are also other important considerations when preparing the workplace for reopening, says Jane Crosby, partner and employment expert at Hart Brown Solicitors. These consist of:
- Carrying out a health and safety risk assessment of your office facilities and establishing whether it is practical for staff to socially distance. Ask yourself how much space there is in your offices: are they open-plan or do people have their own individual offices where the risk of contamination may be reduced? Could employees work side-by-side rather than face-to-face? Do special measures need to be introduced for people with underlying health conditions, such as working from home, until a vaccine is found?
- Introducing flexible working to reduce the number of employees in the office at any one time. Evaluate whether it is possible to assign staff to different teams and stagger their working hours. Also look at how people travel to work – do they use public transport or would it be possible to implement a car-sharing scheme?
- Exploring how best to continue social distancing. Assess whether it will be necessary to rearrange office space and think about shared facilities, such as kitchens and rest areas – will rules be required to prevent employees from congregating there during breaks? Should staff bring in and use their own cutlery and crockery?
- Ensuring effective hygiene practices are in place.Think about how workstations should be cleaned and how frequently – should staff be given disinfectant to do it themselves, and are there enough hand sanitiser and cleaning products in place to keep infection at bay?
Putting a strategic communication plan in place is also vital though so that everyone knows where they stand, says Silverman:
There’s no one-size-fits all approach, but employers should require that employees understand and acknowledge the new rules and policies, and the significance of not adhering to them - that is discipline and/or termination. Employers should also inform employees that they should report, without fear of retaliation, any conditions that they feel are unsafe, or violations of company policies.
A further thing to think about in terms of communication, meanwhile, is logging who is off sick, when and with what symptoms, attests Steve Arnold, chief executive of absence management software provider e-days. If such symptoms appear to indicate COVID-19 infection, other staff members who have been in close proximity should then be informed, while keeping the identity of the individual in question anonymous.
While doing so does raise questions in terms of privacy and ethics, particularly under the European Union’s General Data Protection Regulation, Arnold believes that public safety arguments should overrule them. He explains:
Sickness and health information does fall into a ‘sensitive data’ category, but this is about public safety. If someone calls in sick with COVID-19 symptoms, it’s a matter of public importance, especially at work where people are sharing the same bathroom and opening the same doors. So there should be a list of illnesses that are not subject to privacy rules and where the onus is on the employee to provide information. The rules are there to be sensitive and protect people. They’re not there to create risk, but that’s what’s happening.
Privacy, ethics and operational issues
The US, on the other hand, is not subject to the same levels of constraints as in Europe because, unlike many other countries, there is no overarching law governing employee privacy rights. But Silverman warns:
There are federal laws that touch on privacy issues as well as general privacy principles and state-specific laws. [Therefore] if employers begin to collect COVID-19-related information from employees, they should determine whether any disclosure obligations are triggered under applicable state laws.
But even once such matters have been evaluated and thought through, there are still a number of other operational issues to consider too. According to Crosby, these include:
- Deciding at which point to give furloughed staff notice of when they are expected to return to work, or if such work has contracted or no longer exists, whether to reduce wages, offer unpaid leave or make redundancies;
- Thinking about whether and how to amend health and safety, disciplinary and sickness policies to take account of new procedures. Holiday policies will also need to be looked at to prevent everyone taking holiday together once they return to work;
- Establishing how to manage employees’ worries and concerns about contracting COVID-19 as a result of returning to the office.
While it is clear that the return-to-work stage of the COVID-19 crisis will be phased, what also appears likely is that many employees, particularly in the highly-digitised tech sector, will continue to work from home into the long-term to avoid exposure to the virus – whether they like it or not.
As Silverman says, the phenomenon of large portions of the economy working ‘virtually’ is still novel and easily could have long-term ramifications on businesses and the economy overall, not least in terms of which organizations end up as “winners and losers” based on their ability to digitise.