By Vin Gurrieri

Law360 (May 1, 2020, 9:36 PM EDT) -- Nearly three-quarters of employers have yet to finalize their strategies for restarting operations as states slowly begin loosening restrictions intended to curb the spread of COVID-19, and more than half the businesses are still in the early phases of putting a plan together, according to a new survey by Blank Rome LLP.

In a survey asking its employer clients about various issues related to COVID-19, the firm found that 73% of respondents had yet to lock in a "return-to-work" plan and about 56% of businesses are still only in the "beginning stages" of putting a plan together, according to the report provided to Law360 on Thursday.

The firm's survey elicited responses from executives, in-house counsel and human resources representatives at 150 businesses across a wide array of industry sectors between April 18 and April 24. About 40% of those businesses had fewer than 50 employees. Businesses with over 500 workers and those with between 100 and 500 workers each made up about 25% of the respondents.  

"While businesses know they need to think about this, and employers of all sizes and all geographies get that this is going to be an issue, 70% of the people that responded were starting from scratch still at this point with no plans in place," Brooke Iley, co-chair of Blank Rome's labor and employment practice, told Law360. "I really thought that number would be a lot lower. So ... there's a lot of work to be done in a very short time frame."

Iley's colleague Susan Bickley, a labor and employment lawyer and chair of Blank Rome's office in Houston, noted that a complete back-to-work plan comprises many elements. They include an analysis of the physical workspace, new cleaning procedures, determining if workers will return in phases and whether shift schedules will be altered to better allow for social distancing, and establishing protocols for screening potentially sick workers.

Besides finding that most businesses still need more time to prep for workers' returns, the survey also revealed plenty more about employers' mindsets as states start lifting some emergency orders.

'New Business Normal' Awaits

As companies, particularly those that weren't deemed "essential," start getting back on their feet, it is unlikely their workplaces will look as if nothing happened.

One area where changes will be noticeable is in the number of workers who will wear protective gear, like masks, which employers may start providing to enhance workplace safety.

Of the companies that responded to Blank Rome's survey, 64% said they plan to give workers masks and other protective equipment, and more than one-third said they will be handing out gloves for workers to wear.

On top of that, more than half of the surveyed companies said that social distancing will be mandated at their worksites, and nearly one-third said they foresee thinning out the number of workers at any given time by staggering their shifts.

Other aspects of business operations could also see significant changes well after the public health emergency subsides, with 30% of businesses saying they expect less overseas business travel going forward and 83% expressing an openness toward "increasing remote work options."  

Iley analogized the move by businesses to telework to a "light switch that was flipped as opposed to a dimmer" after businesses concluded that the risk of having workers report to a physical work location wasn't worth it.

"People moving to remote, from our client response, across the board has been a pretty seamless transition, and that's why people will not be in a hurry to remove those remote workforces back into offices right now, in my opinion," Iley said.

Shift to Telework Was Swift

While the survey offers a hint that remote work may here to stay for many companies, it also reveals that they didn't hesitate to embrace the concept in the early days of the pandemic.

Fifty-two percent of respondents said they have shifted to a full-time telework model since the pandemic began, according to the April survey, which was only one percentage point higher than a similar poll the firm conducted of its clients a month earlier.

That data indicates that businesses "that were going to go remote did so very quickly," according to Bickley.

"If [employers] were going to full-remote in their reaction to COVID-19, they did so rapidly in March, and nothing has changed significantly between March and April," Bickley said. "To me, it's a comment on the severity of the crisis that they viewed [telework] immediately as something that they had to do ... and they did it."

Confusion Surrounds Testing

An issue that has emerged as a flashpoint for both essential and nonessential businesses alike is the extent to which businesses must try to identify possible COVID-19 cases within their workforces, given that they have a general duty to provide workplaces that are safe and free of hazards.

Some options that have come to the forefront during the pandemic include health questionnaires and testing workers for fever. The U.S. Equal Employment Commission recently issued guidance saying that employers will be allowed to test employees for COVID-19 before they enter a work site without running afoul of the Americans with Disabilities Act.

Blank Rome's data, however, showed disparities in how employers will approach testing. About 35% of businesses said they are "not planning to engage in any form of testing," while nearly the same percentage said they expected to conduct temperature checks on workers, and 26% said they will institute some combination of available options.

Iley said the testing numbers are not surprising given that essential businesses have likely "crossed the threshold" by doing health or temperature screenings and have gained some level of comfort with the processes involved.

But when it comes to tests to determine if a person is positive for COVID-19 that the EEOC recently signed off on, Iley said, "We're back to the Wild West."

Some of the issues businesses are confronting with those tests include not knowing how to get them, or if states that mandate them mean that workers should only tested once or they need to be retested on a continuous basis, she noted.

Bickley pointed out that while 35% said they don't plan to engage in any form of testing, that doesn't mean they aren't planning to do some health screening "of some sort." Instead, that data point means only that those companies aren't planning on medical testing or temperature checks, she said.

For example, some employees may ask workers to answer a series of questions when they come to work or check their own temperature at home, Bickley said.

"It doesn't necessarily mean that that 35% isn't going to engage in any form of screening. They just aren't going to be doing the testing themselves," Bickley said, adding that the firm's survey didn't extend to situations where, for example, a business is relying on a third party like a building manager to do testing.

"Thirty-four percent of the companies anticipated that they're going to perform temperature checks at work — that's a pretty high number when you think about it," Bickley added. "As far as the other testing ... I think there's a reluctance to perform the more invasive kinds of medical inquiries that have a lot of privacy and a lot of infrastructure around them that may make them difficult to implement in practice."

Workplace Safety Report Spike

Besides testing, Blank Rome's survey also called attention to the workplace safety issue by reporting a "significant jump" in the number of Occupational Safety and Health Administration complaints that employers reported from the survey the firm conducted in March.

In the earlier poll, 3% of respondents reported having received an OSHA-related complaint, whereas 12% reported such a complaint in the latest survey.

That increase is all the more stark given that many businesses were operating with what amounted to skeleton crews, according to Iley.

"Think about how many workers went out between March and April," Iley said. "There's such a limited percentage of workers actually performing essential business operations that when you think about that 12% number, it really is skewed because maybe you have just 20% of your workforce in, if [any] at all."

Renewed Focus on Employee Relations

In response to a question asking businesses to check off lessons they have learned because of the pandemic or things they have learned or more clearly came to realize, nearly 70 of respondents agreed that both the  "importance of company culture" and "the loyalty of our employees" were among them.

Blank Rome also offered respondents an opportunity to leave detailed comments regarding specific measures they have taken both to boost worker morale and keep their workforce connected and engaged, with multiple polled businesses saying they are doing things like having virtual meetings and happy hours, holding town hall-style meetings with company leadership and allowing increasingly flexible work schedules.

The strive toward engagement also extended to workers who have been furloughed, with one respondent to Blank Rome's survey saying it adopted a practice of emailing back-and-forth with those who have been displaced from their jobs.

"This pandemic that we've gone through has brought company culture into a sharper focus because if you have a strong company culture it was easier for those companies, I think, to rely on the loyalty of employees," Bickley said. "They all felt like they had a common mission. They had strong teams in place that they could rely on. It was interesting and reassuring to hear that people were positively commenting on the importance of their company culture."

--Editing by Abbie Sarfo.

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