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Law360 (February 18, 2021, 2:48 PM EST) --
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| Joseph Nelson |
As a response to the COVID-19 pandemic, local and state governments enacted shelter-in-place orders to flatten the curve and reduce the spread of the virus.
Indeed, employers' responses to the disruption caused by COVID-19 will forever change how we view the workplace.
Bedrooms have become offices. Videoconferences have replaced the traditional in-person conferences. And employers have begun to question their need for a large physical footprint.
With over 1 million COVID-19 vaccines being administered daily in U.S., however, the end of the pandemic is in sight. And with the prospects of a fully vaccinated staff, most companies are in the process of evaluating when and how to fully reopen and welcome employees back to the office.
Before this occurs, employers should define the new normal by revising or creating new safety protocols and policies.
Consequently, now is an ideal time for employers to review and update their employee handbooks and personnel policies to address the workplace in a post-COVID-19 world.
This article will address several policies employers should consider in a post-COVID-19 workplace.
Policies on Working From Home
COVID-19 has dramatically expanded remote work, and for some employers, it may be wise to think of this arrangement as a permanent expansion.
For example, in a survey conducted by recruiting agency Robert Half, 60% of employees stated that their work-life balance has improved by no longer commuting to the office.
In addition, a study conducted by research and advisory firm Gartner revealed that 74% of chief finance officers intend to permanently move at least 5% of their workforce to remote positions after the pandemic. Hence, the post-COVID-19 workplace will likely not be a complete return to the ways of working prior to the pandemic.
Indeed, many employees have found comfort in avoiding the commute to work. And many of these employees have also found that they are just as productive, if not more productive, than they were while working in the office.
Therefore, employers should develop remote work policies, or update their current policies, to address continued full or partial staff remote work policies, particularly for those employees who have demonstrated a high degree of efficiency and have maintained productivity.
The telework policy should provide employers with flexibility to evaluate whether a remote working arrangement is suitable for a particular position, based upon, among other considerations, an employee's job responsibilities, equipment needs, and any tax or legal issues that may arise from the work from home arrangement.
Moreover, telework policies should make clear that employees must be actively working and productive during normal work hours. Additionally, employers should make sure that hourly employees are not working unauthorized overtime.
And if an employer chooses to monitor its employees' electronic devices to ensure they are actively working, that employer will need to provide notice of such monitoring.
Language in the employee handbook should also clarify the protocols for working from home, such as when employees are permitted to work from home, whether they must first request permission to do so, and the rules to be followed when teleworking.
A comprehensive telework policy may enhance productivity and boost employee morale.
Communicating in the Digital Workplace
Reacclimating an onsite workforce will present numerous challenges for management, who will need an effective communication strategy that will not only help employees who are returning to the workplace, but also those who will continue to work remotely, embrace a shared vision of what comes next.
When employees worked in one office, working side-by-side, internal communications were easier to manage. For example, a supervisor could simply conduct an office meeting to communicate important messages to the entire staff. And for impromptu messages, supervisors could simply walk around the corner to an employee's office.
However, in the post-COVID-19 workplace, where telework will be the norm and many employees are no longer face-to-face every day, electronic and virtual communications will likely be the dominant mode of communication in the workplace.
Because electronic and virtual methods of communication are more prevalent, employers should take additional steps to protect confidential information, ensure the security of electronic payments, and prevent misuse of social media.
Thus, employers should develop clear policies regarding when and why employees are permitted to take their company-issued electronic devices home with them, as well as when employees may use their own devices for work.
In the digital workplace, where employees routinely telework, data security becomes a critical concern. Hence, employers should also rethink how their services, applications and systems are accessed from external networks that may be susceptible to a data breach. Indeed, according to a report from the Ponemon Institute, the average cost of a data breach in 2020 was $3.86 million.
Thus, employers must ensure they have strong data security systems. One solution may be to design your systems to support access from various external networks.
Moreover, effective communication in the digital workplace will be more important than ever before.
Given the interrelationship between workforce satisfaction and employer litigation risk, facilitating meaningful two-way communication opportunities between the employer and employee will not only ease workforce return but also assist employers in managing litigation risk in the digital workplace.
Consequently, the transparency of information and the ease with which it is accessed are essential to ensuring that employees feel understood and supported.
Transparency includes not only disclosure of new policies and practices and the reasons for them, but also providing the information in an easily accessible and straightforward manner.
Workplace Health and Cleanliness Operations Policy
One of the most significant lessons that COVID-19 has taught us is the importance of a clean work environment. At the onset of the COVID-19 pandemic, the Occupational Safety and Health Administration, or OSHA, and the Centers for Disease Control and Prevention, or CDC, recommended employers promote good hygiene and infection control practices.
Both agencies issued policies for good hygiene in the workplace, which included: providing soap and water for handwashing, placing hand sanitizer in multiple locations around the workplace, and posting posters to encourage good hygiene practices.
Many, if not most, of these policies will likely remain in the foreseeable future.
For example, in January 2021, OSHA issued guidance on mitigating and preventing the spread of COVID-19 in the workplace. And during that same month, Virginia became the first state in the U.S. to enact a permanent rule requiring employers to take steps to protect workers from COVID-19 infections in the workplace.
The rule placed several COVID-19 safety requirements on employers, such as mandating the use of personal protective equipment, developing policies for employees with symptoms consistent with COVID-19, and providing employee training on COVID-19. Other state and local governments may follow Virginia's lead and adopt similar permanent COVID-19 workplace rules.
Thus, employers should review guidelines from OSHA, the CDC, and local and state agencies to remain up-to-date on health and safety recommendations and update their policies accordingly. Embracing a safety-oriented culture through a workplace health and cleanliness operations policy, even post-COVID-19, will demonstrate that employees are highly valued.
Infections Disease Preparedness and Business Continuity Plans
Generally, employers plan for natural catastrophes. They plan for cyberattacks. They plan for workplace violence. They essentially anticipate known perils. But what about the unknown threats? What about a novel virus wreaking havoc around the world? Could anyone have anticipated the shutdown of entire industries literally overnight?
As a black-swan event, the COVID-19 pandemic was impossible to predict with conventional wisdom and forecasting tools. However, there are many lessons employers can learn going forward. The best way to deal with chaos in the future is to be prepared today.
Therefore, if your organization does not already have business continuity and preparedness plans that include responses to infectious diseases, now is the ideal time to develop them. Simply put, business continuity plans are essential in a post-COVID-19 workplace.
These plans should address issues such as how the employer will respond if local, state or federal officials declare a state of emergency or if an outbreak occurs inside the workplace.
In addition, the plans should be tailored to your specific situation and consider things such as whether and which employees may be able to work remotely and how the workplace will be cleaned if employees are diagnosed with the virus (or some variant of the virus). It also should address how core responsibilities will be reallocated if key personnel become sick.
Given the recent OSHA guidance, the business continuity plan should designate key individuals whom employees can contact for information. Keep in mind, however, the plan needs to provide enough discretion to allow you to respond to what is already a rapidly evolving situation. Having a plan is helpful, but not being able to follow through with it can be harmful.
Even if your employees agree to be tested for the virus, for example, a plan that says you will test all employees is not helpful if there are no test kits available.
Conclusion
There is certainly no one-size-fits all approach to updating your personnel policies for a post-COVID-19 workplace. Indeed, employers must think carefully about health and safety, continued telework options and new legal changes.
Consequently, establishing or updating cohesive policies as well as maintaining open and clear communication will go a long way in relieving the stress and anxiety for returning employees.
Joseph Nelson is an associate at Fisher Phillips.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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