Key highlights:
- Even with all the changes brought about by COVID-19, consistency is still key to maintaining a fair, equitable, and legally compliant work environment.
- Now may be a good time for employers to consider reviewing and revising policy manuals, handbooks, and processes in light of what they learned during the pandemic, including reinstating any dormant employee training.
- Wage and hour concerns remain prevalent in a world where many employees are performing their duties beyond the scope of a supervisor’s watchful eye.
In early 2020, the global workforce experienced a sudden and substantial disruption that fundamentally altered the way in which nearly all individuals interact with the workplace. The COVID-19 pandemic forever changed employer-employee relations and rendered conventional perspectives on where, when, and how work is performed antiquated.
Whether the sum of those changes is “better” or “worse” will be left to historians; however, as corporate counsel and C-suite executives, and other leaders in labor and employment law and human capital management know—some things never change. As the COVID-19 pandemic turns into an endemic, the workplace issues and operational initiatives that have consumed the corporate world’s attention are likewise shifting, and with this development an opportunity arises to reflect on what has changed and key lessons learned along the way.
What Has Changed?
Remote work/flexibility is here to stay. Pre-pandemic workplace flexibility typically meant working a changeable schedule or occasionally working from home. Today, “flexibility” includes work “from anywhere” and fitting work into employee’s daily routines and lifestyles—taking the concepts of work/home life balance in a completely new direction.
Increased employer involvement in employee health and welfare. While employee assistance programs and wellness plans have long been a staple of modern work life, the need for such programs is more nuanced than ever as issues surrounding employee mental health and well-being have moved to the forefront of organizations’ legal—and ethical—obligations. Employee mental health was an issue in the workplace long before the public health crisis; the pandemic only amplified the problem. Increased stress and isolation has led to less healthy work cultures. Employers that take an active role in responding to employees’ mental health issues will need to be “intentional” as they move forward to create programs to assist employees and address these ever more prevalent issues.
Employee leverage: “The Great Resignation.” Whatever the basis—discontent with perceived inferior jobs or increased awareness regarding work characteristics—driving retention in the post-pandemic world will be an equalizer in the workplace for years to come.
What Has Not Changed?
Consistency is still key to maintaining a fair, equitable, and legally compliant work environment. Wage and hour concerns remain prevalent and routine functions such as timekeeping for purposes of the Fair Labor Standards Act take on a new significance in a world where most employees are performing their duties beyond the scope of a supervisor’s watchful eye.
1. State and Local Laws Control Regulatory Framework for Pandemic-Related Workplace Safety Obligations
At present, employers no longer are obligated to implement workplace safety policies to comply with the emergency temporary standard the U.S. Occupational Safety and Health Administration issued on November 5, 2021. Employers remain free to establish appropriate COVID-19–related policies (including vaccination requirements and/or testing), subject to state law restrictions and federal and state requirements for providing reasonable accommodations based on disability and religion.
As new variants of the coronavirus arise and state and local governments potentially reinstate previously rolled back COVID-19 workplace safety rules, employers may want to consider updating their pandemic-related health and safety procedures. In doing so, employers are reminded some health and safety procedures are permitted only if related to the COVID-19 pandemic.
2. Accommodation Requests: The New Swords and Shields of the Workplace
Masking, testing, remote work arrangements, and COVID-19 vaccination mandates injected novel arguments and perspectives related to employees’ requests for accommodations under both federal and state laws. These quickly emerging concepts have forced employers into a new era of determining whether, how, and when to accommodate employees’ objections to a variety of workplace policies.
For example, in March 2022, the U.S. Equal Employment Opportunity Commission (EEOC) issued a technical assistance document that provides guidance relating to discrimination against applicants and employees who have COVID-19-related caregiving responsibilities. Caregivers—as a class—are not protected under Title VII of the Civil Rights Act of 1964 (Title VII), Titles I and V of the Americans with Disabilities Act of 1990 (ADA).
The guidance explains that caregiver discrimination violates federal employment laws when it is based on: (1) an applicant’s or employee’s sex (including pregnancy, sexual orientation, or gender identity), race, color, religion, national origin, age, disability, or genetic information; (2) applicant’s or employee’s association with an individual with a disability, or on the race, ethnicity, or other protected characteristic of the individual for whom care is provided; or, (3) intersections among those characteristics.
For example, the guidance provides that it is unlawful to refuse to hire a female applicant, or take an adverse action against a female employee, based on the assumption that she is focused on COVID-19-related caregiving responsibilities (e.g., such as staying home with children who are participating in remote learning).
Similarly, it would be unlawful to deny a male employee’s request to work a flexible schedule to care for a family member with COVID-19, if similarly situated female employees are granted such an accommodation. The guidance also provides other examples relating to other protected categories—such as race, age, LGBTQI+ status—and COVID-19-related caregiving responsibilities.
3. Remote Work Arrangements Now Commonplace – But Does it Make Sense for Your Workforce?
The emergent nature of the COVID-19 outbreak in 2020 and public health restrictions compelled employers to adopt alternative workplace arrangements in a hurry to ensure continuity of business operations. Two and half years later, more employees are returning to in-person work as pandemic restrictions ease and business operations return to the so-called “new normal.” Corporate leadership may want to take this opportunity to intentionally plan for a post-pandemic remote work arrangements, leveraging recent experience with a dispersed workforce.
As companies evaluate the optimal policy for their organization, decision makers should carefully consider whether increased flexibility for remote work makes sense for their workforce. Considerations include the products and services the company provides, as well as the nature of the work.
Certain support services such as IT and accounting functions (or other “backroom functions”) that do not require collaboration or coordination with colleagues may be carried out in remote locations. For many service workers and those whose job entails manufacturing functions, employees must be “present” to produce.
4. Multi-Jurisdictional Compliance is Not Limited to Multistate Employers
Flexible work locations have moved past working from home to working from another state or country. One study has shown that 20 to 25 percent of the workforces in advanced economies—primarily in the computer-based office work arena—could work from home between three and five days a week, that is four to five times more remote work than before the pandemic. This trend could prompt a large change in the geography of work, as individuals and companies shift out of large cities into suburbs and small cities.
There are myriad employment laws, tax and international privacy considerations when your employees have “flown the coop.”
5. Wage and Hour Issues for Hourly, Nonexempt Employees Working Remotely
Remote work arrangements present wage and hour compliance challenges for employers managing nonexempt, hourly workers, in particular as to employers’ recordkeeping and payment obligations under the Fair Labor Standards Act (FLSA) and related requirements under state laws.
While hourly employees’ off-the-clock work was difficult to control pre-pandemic, the nature of remote work exacerbates the issue, drastically limiting employers’ ability to monitor remote employee’s work time. Employers may want to consider implementing, or if already in place, reviewing and, if needed, revising the following:
- Timekeeping Policy: Consider emphasizing responsibility of nonexempt employees to accurately record and report all time worked, including specific provisions on tracking pre- and post-shift work as compensable time and reporting time worked through meal or rest breaks; stating that employee failure to record time accurately may result in counseling, additional training, and/or discipline; and, making clear that nonexempt employees may not work off-the-clock under any circumstances.
- Time Record Certifications: Consider requiring nonexempt employees to certify, in writing, that they have accurately reported and entered all time worked each week. Additionally, in states that have meal and rest break laws, consider having nonexempt employees verify that they have received all legally required meal and rest periods. The certification document should be retained, whether in paper or electronic form.
- Work Approval Processes: Consider requiring employees to obtain pre-approval of all unscheduled work, such as starting work early, working off-schedule, or working overtime. The policy should also provide that counseling, training, or discipline may result if such work is performed without prior authorization.
While these mitigation efforts were best practice pre-pandemic, now is a good time for organizations to re-evaluate how they are managing these efforts.
6. Fundamentals of the Workplace: Policies, Procedures, and Employee Training
The pandemic caused the most profound disruption to workplaces in generations; however, it did not usurp certain fundamentals of the workplace. As employees return to in-person work, employers may want to consider reviewing pre-pandemic processes and systems and reevaluating and re-engaging best practices.
In general, employers may want to review and revise policy manuals, handbooks, and processes in light of what they learned during the pandemic, including reinstating any dormant employee training. During the pandemic, many employers abandoned regular training and performance feedback to focus on ever-changing COVID-19 mandates. However, now may be a good time to reinstate and update such programs.
7. Promoting DE&I Commitment Through Sustained Action
The pandemic highlighted the reality that despite advancements in the areas of workplace diversity, equity, and inclusion (DE&I), there is more work to be done. Trending post-pandemic are DE&I interventions that address and minimize bias, increase diversity, and address overarching cultural changes in the workplace.
8. Increased Employer Involvement in Supporting Employee Mental Health and Well-Being
The COVID-19 pandemic has changed the workplace in many ways that may affect workers’ mental health, requiring organizations to take a broader focus on employee health and wellbeing. There is also a good deal of evidence that the last two years of isolation and the shifting work arrangement exacerbated some employees’ preexisting mental health concerns.
Some employees are anxious to return to the office or physical workplaces or be in social settings once again, while others are eager to be back around other people. Others carry anxiety over having to protect high-risk family members or over having to take care for someone with long-term complications from COVID-19. Employee stressors may also include fear of infection at work, child care or elder care concerns, care taking for the terminally ill, financial stress, or the loss of loved ones.
Supervisors and managers should be trained to recognize when an employee may be requesting an accommodation based on a mental health issue versus when an employee is merely approaching them with mental health concerns.
They should also respect employees’ privacy and understand their responsibilities regarding protected health information. Supervisors and managers play an important role in communicating with employees, providing stability, and recognizing signs of distress.
It’s crucial that supervisors and managers are trained in how to recognize employees who may be in distress and to know when and how to intervene. Something as simple as, “Are you okay?” may open the door to better communication and provide an opportunity to gauge an employee's mental health risk.
While telehealth became more widely used over the past several years, reminding employees of any physical and mental health resources may be included in routine employee communications. Employers should also consider changes to these programs to address new stressors faced by a returning workforce.
9. Capture the Essentials: Job Descriptions and Hiring Practices
It is now more important than ever for a company’s job descriptions, job positions, and hiring processes to capture all the essential functions of each position and convey the particular locations employers expect employees to work. Additionally, employers may want to consider reassessing the skills needed to perform the duties of every job position; the actual skills needed post-pandemic may have changed or there may be some skills that are not needed at all. Some questions that may facilitate this job analysis include:
- Where must this job be done?
- How will the company compensate employees who are required to return versus those who remain working remotely?
- How can the company attract new talent and re-engage current employees once they return to an in-office environment?
10. Focus Retention Efforts to Capitalize on the Great Resignation
“The Great Resignation” provides employers with an opportunity to seize on this moment of worker fluidity to create positive organizational change and focus on attracting and retaining employees.
Authors: Lisa C. Hamasaki, Erika L. Leonard, and Karen M. Morinelli (Ogletree Deakins)
