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10 June 2020
With the restrictions imposed to combat the COVID-19 pandemic slowly loosening, businesses are thinking about returning to work and what this will look like in practice. While it will not be business as usual, this article highlights how employers can smoothly transition back to work.(1)
Creating a transition team is an important first step for employers when preparing to reopen to ensure that they are safely resuming operations and protecting their employees and customers. The team will depend on the size of the organisation, as well as its structure, line of business and operations, and should be cross-functional. For example, the team could include individuals from HR, communications, operations, facilities and maintenance and upper management. The team should consist of individuals with the necessary insight to proactively spot issues. The legal department will also play a critical role as it can advise on how to strike the right balance between legal compliance and practical, business-driven realities. With federal, state and local guidance constantly evolving, companies should rely on in-house counsel as well as outside counsel to help them to navigate the legal landscape and draft plans that will mitigate any potential risk of litigation.
Having a transition plan will help businesses to adjust and respond to the short and long-term impact of COVID-19 on their workplace. Companies should be aware that many states as well as local governments are requiring a written return-to-work plan as a condition of reopening. Written plans also help employers to prepare for effective crisis management and send a clear message to employees and the public regarding what they are doing to keep everyone safe.
A written return-to-work plan should focus on safety, staffing and a reopening timeline. Employers' primary objective is the safety of their employees and customers, service providers and anyone else who enters their workplace. Local laws and ordinances may require specific procedures around social distancing, workplace configurations and the use of personal protective equipment (PPE), among other things. In addition, depending on the circumstances and business demands, it may not make sense to recall all workers simultaneously. Employers should also be careful to use objective factors when deciding who comes back to work to avoid disparately affecting certain groups (eg, those with pre-existing conditions or older workers). Moreover, multistate employers will need timelines that are location specific as one size does not fit all. Outside counsel can help employers to navigate evolving stay-at-home orders, reopening guidance and other obligations to which they are subject to ensure that they are prepared to meet the challenges of reopening.
Employers must review and, if necessary, revise their existing employment policies for compliance with COVID-19 safety guidelines and local, state and federal guidance. Now is the time for employers to review their employee policies (eg, expense reimbursements, reporting procedures for worker safety complaints and attendance) and craft new policies or specific addenda that address COVID-19-related issues applicable to their industry. In particular, employers using telework policies should take steps to comply with wage and hour requirements and timekeeping for non-exempt and some exempt employees, including enforcing meal and rest breaks and overtime approvals. As an alternative to permanent policy adjustments, employers can consider including temporary COVID-19 addenda in their current policies.
When implementing new COVID-19-related policies and protocols, employers must make clear that failure to comply is a serious violation of their code of conduct. Employers should share their policies with employees and clearly define any disciplinary action. Examples include failing to follow health screening procedures or PPE requirements. However, employers should also be mindful of retaliation and potential discrimination against employees, as well as potential employee management issues.
For further information on this topic please contact Michael J Sheehan or Carole Spink at McDermott Will & Emery's Chicago office by telephone (+1 312 372 2000) or email (firstname.lastname@example.org or email@example.com). Alternatively, contact Ron Holland at McDermott Will & Emery's San Francisco office by telephone (+1 628 218 3800) or email (firstname.lastname@example.org). The McDermott Will & Emery website can be accessed at www.mwe.com.
(1) This article is based on a recent webinar, available here.
Emory Moore Jr, associate, assisted in the preparation of this article.
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