As restrictions are being lifted around the country, the reality of returning to the workplace is coming into focus. I’ve spent some time looking across the various surveys conducted by different organizations as to what companies say they are doing. Here’s what I’ve learned.
First, lots of companies are still working on their plans. While virtually every large company is working on a plan, my sense from various surveys is that maybe two-thirds are at the general policy level (e.g., What will we do about employees who refuse to return to work?) and only about one-third are really into the weeds on issues like how will re redesign the workplace (a survey by Blank Rome law firm says only 12% expect to make “substantial” changes).
In some ways, this is perfectly understandable and smart. The context continues to change. State and local governments have been drafting new rules as to what is permitted in public places, not just for customers but also for employees. What we know about the pandemic keeps changing. We are watching science learn in real time, and it’s slow.
Second, there does not appear to be any rush to reopen. A SHRM survey says 53% of employers will reopen their offices by July 15, while 43% have made no announcement yet. Perhaps the most interesting statistic I’ve seen is from a survey by the Littler law firm showing that 42% of employers say that they are going to see what happens to other businesses that reopen before they do so. That’s a big number, by far the most common response to the planning question–far more than those saying they will base their decision on the lifting of government restrictions.
The problem is that, if everyone waits to see what the others do, nothing happens. It suggests that the process of reopening will be quite slow. I am surprised to hear the number of employers that have already told their employees that nothing will happen until September. That might be good for employee health, but it is bad in the short term for jobs and the economic recovery.
Third, it looks as though most companies are going to be doing some testing before employees can come into the workplace. Blank Rome found that two-thirds plan to conduct screening, mainly temperature tests (which seem to allow lots of false positives). The EEOC has made clear that employers can do this.
Related: The legal do’s and don’ts of returning to workplaces
Fourth, based at least on what we hear from the companies that participate in our Center for Human Resources, virtually all employers have in mind a phased return of employees, with the first wave based on the job one holds and how crucial it is to have it done on site. Three waves seems to be common. A driver of the pace will be social-distancing policies: You can’t do one without the other in place. An analogy is with colleges and universities, where the decision to reopen and have no roommates in dormitories means that only about half of undergrads could be back on campus at the same time. It will be extremely tricky to bring most employees back in typical workplaces and truly exercise social distancing.
You would be right in guessing that the law firms are all over these surveys and reports, and for good reason. I cannot think of any event in my lifetime where employment lawyers need to be more involved. The obvious reason why is that we have all been told how important it is to stay away from other people, and now we have to go back to work, where we are around lots of people. So–
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- What do we do about people who don’t want to come back to work for the perfectly reasonable fear of getting sick? In most circumstances, employers can make them come back, but there have to be lots of special circumstances and local regulations, especially in California, God’s gift to employment lawyers. Companies like Amazon have gotten tougher about making employees come back to work, but the companies I’ve talked to still appear to be pretty tolerant about not forcing at least their white-collar workforce who could work from home back into the office if they feel unsafe.
- How do we keep people safe? In addition to just caring about our employees, it would be an operational disaster to have a COVID-19 outbreak in an office. A big part of keeping people safe is about preventing them from coming in if they think they are sick. But what if they don’t get paid unless they come in? That leaves us with testing, and medical testing of current employees is something we’ve been taught is a no-no. All kinds of laws apply here.
- Can we try to keep employees who are at greater risk of serious illness from returning to work? I’ve heard stories of some employers saying, for instance, that older employees can’t return. The EEOC appears to have ruled that across-the-board restrictions like this amount to discrimination. Will we end up with little algorithms predicting who is most at risk to keep them away?
There is a lot to be done, and it will have to be done very fast, given that we are all waiting to see what happens. Expect a lot of “all-nighters” being pulled by HR people–and their lawyers.
