COVID 1 Year In: What Employment Attys Still Don't Know

By Jon Steingart
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Law360 (March 11, 2021, 8:57 PM EST) -- Going into the second year of the COVID-19 pandemic, we know a lot more than we knew last March. But there is still a lot that labor and employment attorneys don't know.

One of the unknowns is what the U.S. Occupational Safety and Health Administration will do. The day after his inauguration, President Joe Biden ordered the agency to consider whether emergency temporary standards are necessary to protect workers. He ordered OSHA to issue them by March 15, if it finds that they are.

On the other hand, we know a lot more about how to mitigate the virus's spread, and a growing number of Americans are getting vaccinated every day and thinking about returning to workplaces.

Here, Law360 discusses what employment lawyers know and don't know about what's to come.

In the Near Term: How Do We Return to Workplaces?

Seyfarth at Work, a workplace management training and compliance consulting firm that's a subsidiary of employer-side law firm Seyfarth Shaw LLP, has put a lot of thought into how to successfully bring people back to the workplace.

"There's the initial piece, in terms of how you integrate and onboard, or re-onboard, them," Seyfarth at Work president Philippe Weiss told Law360.

"That includes, to some extent, being cognizant that some people might be cautious, reluctant or worried about coming back," Weiss said. "How do you reassure them that you're doing everything you can in terms of safety, social distancing, et cetera?"

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One way to do that is to play up the benefits of in-person interactions, Weiss said.

"A lot of our clients are experimenting with some of that, like talking about projects that really will benefit from in-person collaboration, or showing what they've done to enhance the workspace," he said.

The key is to communicate with employees with messaging that is "positive, fun, attractive and appealing," he added.

As companies bring workers back on-site after months apart, it's understandable that people would want to catch up, Weiss said. But that will require managers to be more vigilant in ensuring that socializing doesn't pull them too far away from completing their duties, he said.

The consulting firm informed its advice with surveys it conducted of several hundred employees, managers and business owners who participated in its programming in January and February.

It designed the surveys to get a sense of what people want in their future work-life situation and what has changed over the last year. Results cover a variety of industries but don't include manufacturing, Seyfarth at Work said.

Nearly three-quarters of the respondents, or 72%, said they hope for more flexible work arrangements, such as remote workdays and staggered schedules. Nearly six in 10, or 59%, want employers to plan for future emergencies, whether it's another pandemic, economic downturn or some other crisis.

Just under half of respondents, or 44%, said companies should place more emphasis on their organizational values. Rather than just focusing on the bottom line, companies should consider their role in society, respondents said.

In terms of what people miss, more than six in 10, or 61%, flagged in-person and grown-up workplace conversations. About four in 10 said they miss the regular or daily structure of an office, socializing with colleagues over lunch or happy hour and working with fewer interruptions, coming in at or around 40% each.

Some people even missed the nonwork parts of work, Weiss said.

"Perhaps surprisingly, 16% said they miss the commute," he said.

Litigation Awaits, Unions Gain Clout in the Medium Term

Returning to normal means that court action will ramp up as judges try to clear a backlog of cases that slowed during the pandemic or have been filed as a result of it, according to Ashley Cuttino, a shareholder at Ogletree Deakins Nash Smoak & Stewart PC and co-chair of the employer-side firm's COVID-19 litigation practice group.

"When you talk about things that employers are going to face in the immediate future, and in the medium near future, litigation is one of them," Cuttino said. "I think it's going to take at least 24 months for the ship to normalize."

Employers that are trying to stake out a new normal may try to invest resources in those efforts rather than defending themselves in litigation, she said.

"When you talk about the cost of litigation and the people-time that those things suck up, businesses are trying to survive right now and get back on their feet," she said. "Settlements may occur quicker."

One particular area of employment law that may see a long-term change because of the pandemic is how employers will respond when workers with medical conditions ask to be allowed to telework as a reasonable accommodation under the Americans with Disabilities Act , she said.

"It is certainly hard to argue that it is not a reasonable accommodation if someone was able to efficiently and effectively do that job remotely during the pandemic," Cuttino said. "I do think that's an area where the pandemic has pushed us into accepting this kind of workforce."

In terms of unions and organizing, the pandemic has equipped labor organizations with urgent topics like safety and flexibility that could help with building worker support, but the greater impact will come from the change in administration from former President Donald Trump to Biden, she said.

That creates a different environment in which unions will operate, as Biden has appointed officials with labor backgrounds to roles at the U.S. Department of Labor and a "very aggressive" general counsel at the National Labor Relations Board who is responsible for prosecuting unfair labor practices, Cuttino said. He also has an opportunity to flip the board itself to a Democratic majority as members' terms expire, she said.

"I think COVID allows unions to have a good platform right now with talking about safety and return to work and all of those issues, but it really has more to do with the administration than it does with COVID itself," Cuttino said.

"I think what people have to accept is that post-pandemic, we are not going back to the old normal," she said. "We're going back to the new version of normal."

Employers Grapple with Pandemic's Impact on Women, Calls for Racial Justice

As the pandemic recession has continued, it has come down disproportionately hard on women, especially in households with children where they have taken on much of the caregiving.

Lauri Rasnick, an attorney at management-side firm Epstein Becker Green, said companies should consider ways to avoid making working mothers feel as though they have to overcome extra hurdles for returning to in-person work.

Without careful planning, those hurdles could become palpable in workplaces that adopt a hybrid approach with remote and in-person workers, she said.

"I could see a situation where these types of procedures or policies that employers set up around requiring in-person attendance weigh more heavily on working mothers," Rasnick told Law360.

Some employers may continue to offer remote work options but schedule periods when people are supposed to be in the office for a meeting or to foster collaboration, or choose to downsize their footprint and bring in different teams on different days, she said.

"Once they really start determining what the requirements are for employees coming in, then they'll need to consider how to accommodate employees who may not be able to come into the office due to various medical conditions or otherwise," she said.

And as people return to in-person workplaces, the foregrounding of racial justice issues means employers are facing a different world and a renewed opportunity to incorporate diversity, equity and inclusion, Rasnick said.

"I think a lot of the employers took some initial steps in the late spring to summer, up until now, where they might have done some listening meetings or even some diversity training or unconscious bias training," she said. "A number of those companies are looking at what to do as a next step from there and how they can really create lasting programming to have a real impact."

"The training can really help frame the issues and highlight the issues for employees and management," she said. "Without some action items, it's unlikely that training alone is really going to have substantial impacts in the workplace."

Structural Reforms May Come in the Long Term

The National Employment Law Project, a worker advocacy group, said in a set of policy recommendations that government officials should take advantage of this moment not simply to rebuild workplaces as they existed before, but to roll out long-term reforms that mitigate inequities. The report was informed by a nationally representative survey in September and October of adults who were working or expected to return to work.

"In the last year, we've been really confronted with how public policy choices and firm-level practices make life and work a lot more precarious for Black and Latinx workers," Maya Pinto, a senior researcher and policy analyst at NELP, told Law360.

Black and Latinx workers have been disproportionately denied access to on-the-job benefits like paid leave to take care of themselves or family members, and they reported being afraid to speak up about workplace safety concerns in greater numbers, Pinto said. Among unemployed workers, they are less likely to receive jobless benefits, she said.

Strengthening protections against retaliation is necessary so that people don't have to fear losing their jobs or being forced into an intolerable situation if they speak up with concerns or refuse unsafe work, Pinto said.

One item that would help give workers a stronger voice is the Protecting the Right to Organize, or PRO, Act, she said. The legislation, which the House approved Tuesday, would make it easier for unions to organize and penalize businesses that interfere with collective action rights, and confer the right to unionize on more workers.

Besides the PRO Act, other policies include strengthening whistleblower protections, enacting just-cause protections that require employers to justify adverse actions and letting individuals who refuse unsafe work receive unemployment benefits, she added.

Structural reforms like these have been necessary for decades, and the need has become even more apparent over the last year, Pinto said.

"A lot of these are long-term issues that were brought into stark relief during the pandemic," Pinto said.

--Editing by Abbie Sarfo.

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