Election 2020: Providing for Employees in the Post COVID-19 Workplace

Transcript

Alitia (00:10):

Welcome to Jackson Lewis' podcast, We get work™. Focused solely on workplace issues everywhere, and under any circumstances, it is our job to help employers develop proactive strategies, strong policies and business oriented solutions to cultivate a workforce that is engaged, stable and diverse. Our podcast identifies the issues dominating the workplace, and its continuing evolution and helps answer the question on every employer's mind: how will my business be impacted?

The election won't cure COVID-19 but it may impact how employers handle and respond to the realities of the new workplace. As businesses around the world reopen and reset, employers face a complicated situation of returning employees to work and implementing practices to keep the workplace COVID-19 free. Employers are being asked to assess symptoms, deal with employees who don't want to wear masks and manage complicated leave and remote work requests. In addition, many are planning for what to do when a vaccine becomes available. This episode of We get work™ discusses how the ever-changing state of the law impacts your ability to run your business and keep your employees safe, in the face of the continuing spread of COVID-19.

Our hosts today are Patty Pryor and Katharine Weber, Principals, in the Disability, Leave and Health Management Group, who spend a good deal of their time talking to each other about how to help clients in 2020 and in the re-imagined workplace. Patty loves talking to our clients and educating employers about workplace law, and how to avoid potential legal compliance pitfalls, to build a workforce that meets the legal and business needs of their companies. Katharine has appeared numerous times as a guest on the nationally syndicated radio talk show, the Bill Cunningham Show, the Cincinnati radio talk show and the Mike McConnell Show. And we're happy she's talking to us on our podcast today. Patty and Katharine, the question on everyone's mind today is: what does the evolving workplace look like after the election, and how will it impact my business?

Patty (02:29):

Well, I think it looks pretty much the same as it looks today. But much different, than it looked a year ago. Katharine, what do you think?

Katharine (02:37):

I agree Patty. And if you think about it, things look wildly different today than they did last year. I mean, think about it. What were you doing during the first week of November, 2019? Right? You were probably planning for how you were going to be able to stuff three family Thanksgiving Day dinner get togethers, into one 24-hour period, without getting sick. But now you're probably wondering whether you're going to be able to have anyone over to your house for Thanksgiving Day dinner, without being in violation of some state or local order. So things have changed incredibly just since last year. But as far as the election goes, I really don't see any immediate changes following the election.

I mean, whatever changes we see in the workplaces will continue to be a reflection of the changes our state governors, and local governing bodies implement, in response to how the virus is spreading in our local communities. And that will be throughout the remainder of 2020, because of course, whoever wins the election, that change isn't one to take place immediately, right? And I also think that just as we're already seeing some of our governors start to close down some of the segments of our business community, we will continue to see more of that. Not because of who wins or loses the election, but rather because of people coming together for Thanksgiving Day celebrations, for college students returning home from school and let's just face the reality that we are entering cold and flu season. And just about every symptom that is identifiable with COVID, is also identifiable with the common cold and the common flu.

So, as more people become ill, for whatever reason, you're going to see people who are going to have to take a step out of the workplace until they recover. You'll see close contacts, and people having to stay out of the workplace for 14 days just to ensure that they aren't spreading the virus to other people. So I really don't see the election as causing an immediate impact in the workplace. Whatever impacts we have in the workplace really are going to be driven by the virus.

Patty (04:59):

I think that's right. I think that's absolutely right. I mean, some of the political issues we've seen coming up are the masks, with people being concerned about whether they can or can't wear masks, where they should or shouldn't wear masks, whether they have a right not to wear masks. So I think that's one thing people think might change with the election, but I think it's going to be the same.

I mean, the masks are here for some period of time, people are going to need to wear them. And I think that's something that impacts the workplace. Right? I mean the masks make it harder to hear people, you don't see smiles anymore and you have varying degrees of compliance and varying stances from your employees about those masks, and whether they should or shouldn't wear them.

I think one of the other bigger challenges for employers right now as compared to last year, other than the Thanksgiving dinner, which I didn't make last year and I won't make this year. But the other challenge you have, is just the social distance that we have. Right? Obviously we have so much distance in between people and many workers are still working remotely, or working in isolated offices, both of which can contribute to morale issues for employers and contribute to discontent in the workplace.

And more importantly, add to mental health issues. We've certainly seen an increase in the mental health issues, which impacts the workplace, too. So you've got anxiety and depression, and just a feeling of isolation among employers and employees. And that becomes harder to manage and harder to build the comradery in that workplace that the employers want to build, when everyone's socially distant. If not, completely physically distant. I mean, I guess the one upside of the physical distance, is we are seeing less sex harassment claims.

Katharine (06:32):

Well that's spoken like a true labor and employment attorney, right? So yes, you're right. We do have less sexual harassment claims that are being made. But I got to tell you, I mean, the disability and accommodation claims and the request for leaves of absence, those are way up. And because we sit on the firm's National COVID-19 Response Team, we see a lot of the same questions being presented by employers across the country day in and day out. And, this is really ... it's always been incredibly rewarding to run your own business, but it's also been incredibly challenging too.

And certainly I think that when we get five years behind us, right? I mean, business owners will look back on this and say, "There was never a more challenging time for me in terms of being able to run my business, than when I had to do so profitably, than when I had to do so and try and comply with all these state and local specific rules relating to COVID, and when I had that incredible weight on my shoulders of trying to operate that business and make sure that I kept my employees safe and my customers safe from the unnecessary spread of COVID in the workplace".

And our business owners, they're getting faced with a lot of questions from folks. Some of which are easier to handle than others. Certainly employers are being asked, "Look, can I take time off work because I fall in a vulnerable population." Or "Because I'm pregnant." I know a lot of people go well, "That doesn't put somebody in a vulnerable population. Right?" Well, it might, it might depending upon what the doctor says. Or they might say they're caring for a parent or a child who falls in a vulnerable population and all those are really easy ones to address because they would all... At least for employers with fewer than 500 employees, all of those are going to be covered by the Families First Coronavirus Response Act.

So there's going to be some amount of time off work that are going to be available for folks in those circumstances. And to the extent that the employer isn't covered, then of course, you have to look at the underlying medical condition that is driving the person to say that they're in the vulnerable population and consider whether or not that, might trigger some accommodation requirement under the ADA, or if there's not an accommodation in the workplace, such as, changing their work environment or allowing them to work from home, then maybe we're talking about a leave of absence situation under the ADA, or maybe under FMLA. And I guess, on the opposite side of the spectrum, we have employers who will look back in five years and think how challenging it was to operate their business.

Patty you and I both have kids, thankfully they're grown, but I've got four kids. And when I think back, what if COVID had occurred when all my four children were younger and they were in school and I had to balance a full-time practice and trying to be a great mom. And also ... I hope my kids aren't listening to this because I don't need any commentary [inaudible 00:09:31]. But also, trying to be the homeschool teacher, right? And make sure that they got a great education and grew up to be great adults. And that would be quite an incredibly challenging time.

So, working parents out there, they will look back on this time and have the same feelings. And right now employers are getting questions from their employees who do have small children. And it's really easy when the school is completely closed, right? And it's like, "Hey, we're closed. And all the classes are virtual or remote." Yep, that's FFCRA. Or maybe the school says, "Well, we're doing hybrid schedules. So on week one, A through F is in the school building for class and on week two of each month, then the rest of the kids are in school." And even that, if you can imagine this, even that is a relatively easy question to address, right?

I mean, when the kids are required to go to school remotely, then the parents are able to take FFCRA leave. But the thing that drives parents crazy, but the EEOC has been very clear on, is that if the school is one of those schools that says, "Look, we're going to give parents the choice." Right? I mean, you can choose to send your kid to school remotely, or you can choose to send your kid to school in person, in the school setting, right? And in that setting, if the parent chooses remote learning, when the school was otherwise open and available for the child to come in and go to classes, FFCRA is not available in that setting. So, that just shows, everybody is going through challenges right now. It's really not just the employers, but it's the employees too.

Patty (11:21):

Yeah, that's so true. I mean, but you talked about the FFCRA with school leave, which I think is an easy one, but what about those employers that are too big for FFCRA to apply, but they still have plenty of employees in their workplace who also have those same childcare issues. I think that's one of the questions we keep getting to. Is, well, "what about them?" Do they have to accommodate in a sense? Do they have to provide time off for their employees who might have childcare issues or school issues when they're not covered by FFCRA? And I know for a lot of employers, it comes down maybe not to a legal obligation, but it comes down more to just a retention and what kind of an employer they're going to be. Because there is this pandemic, hopefully, it's going to end soon, but employees are going to remember how they were treated during it.

And so that long-term retention of employees is somewhat contingent on how employers treat them now. That doesn't mean in many cases, employers can't accommodate their employees being off or working remotely. I mean, some employers, the employees actually have to come into work. And so there was no option there. But in cases where you can, or you can be more flexible, that's going to go a long way in terms of making sure you're not losing employees, that you've already invested time and energy into developing. Some cases, it's going to be unavoidable, but in other cases it is something I think employers are looking at and walking through and considering when they're faced with those obligations.

Katharine (12:47):

Absolutely, and we've seen some employers who have taken the position that "Look here, and we're asking all of our employees to come back into the work site, unless you've got a doctor's note that says that you don't have to." And those folks, they're legally entitled to take that position. Right? I mean, if FFCRA isn't in place and we don't have an underlying medical condition, then they're entitled to take that position. But from a social media standpoint, those employers are really taking it on the head in some situations, because that isn't what our culture currently expects of them. So, that's a tough situation to be in.

Patty (13:24):

Yeah, and the good thing, the good thing or bad thing, so, for employers, who've been struggling with that FFCRA part a bit, there's employers who are under 500 employees. That's set to sunset or end, at the end of this year. And the question is, will that be re-upped? Will they extend that? I certainly think that's one thing we're going to see out of a new Congress. Is whether it's going to be a re-upping or a extension of the FFCRA leave, or some other type of paid family leave. I think that's something we're going to see out of all of the various state and local and the federal government. The pandemic has certainly been an impetus, I think, in a large way. Where employees and just the public, are going to be in an outcry of, "We need to have guaranteed paid sick time. We need to have guaranteed time off." And so I do expect, we will see where they're federally mandated and certainly more and more state and local mandated requirements on that regard.

Katharine (14:19):

I agree. And there's still so much to say about so many issues. I mean, right? Where do you start? You and I were laughing the other night because I had pulled out of the LitWatch program that we have at Jackson Lewis right? And LitWatch is this great tool that we have for our clients, where you can subscribe to this service. And you can actually see what kind of COVID related cases are coming out of the pandemic. And, Patty, did you have a chance to look at the cases related to masks?

Patty (14:49):

Oh, it's unbelievable how many cases have already been filed relating to masks. And it goes back, I mean, the crazy part is that, in some cases, the cases where employees are making some kind of lawsuit of masks, in some cases, it's them complaining because the employer was not strict enough with the mask requirements and weren't requiring it enough. And so the employees are complaining either that they didn't have a safe workplace, or maybe if they complained about a safe workplace and their employers then retaliated against them. And then on the other hand, the other type of mask-type claims or lawsuits we're seeing, are where employees are saying, "Hey, I don't want to wear a mask." Maybe because I've got a disability or maybe because [inaudible 00:15:27] religious accommodation, or some other reason. And they're bringing lawsuits because the employer didn't accommodate them or didn't allow them not to wear masks.

So, in large part, employers are stuck in this hard place of "If I'm too strict, then I've got employees filing lawsuits because I'm not accommodating them. If I'm not strict enough, then I've got employees filing lawsuits because it's an unsafe workplace." So it very much becomes this winless situation for employers and trying to narrowly thread that needle becomes a challenge. And I think it really becomes important in those circumstances that they're listening to employees. Whatever the concerns and complaints are, right? Right now there's a lot of just unrest, and a lot of concerns from employees on all different angles. And everyone's upset about something.

I mentioned the anxiety and depression element that certainly contributes to it. But there's just a political divide and unrest. And so for employers, I think the key is to listen to whatever concern the employees bring forth, and then try to address that. Doesn't mean you give into everything an employee asks for. But I think it's just listening to them, hearing what they're saying, if they have a challenge with the mask, look in for an accommodation that might work for them. If they are concerned about safety, talk about what the safety you're providing, talk about ways you're trying to improve the safety. Thank them for bringing forth an issue and talk about ways that together you guys can fix it. Because I think that's going to be so important as we move forward in these kind of issues.

Katharine (16:52):

I was just going to say, in all cases, I mean, it really is about the interactive process. Right? And, interactive process is just a fancy word that the lawyers might have for listening and working with each other, trying to find a solution that works. Right? That's all that is. But anytime somebody says, "Hey, I can't wear a mask." In the work place, for whatever reason, or "You shouldn't make me wear a mask." For whatever reason, it's all about listening. It's all about going through that interactive process and looking for a solution.

And then, certainly pay the attention to your state and local laws. Right? I mean, because you that's going to impact how much flexibility you have to some extent, and thinking about the particular job that the person does in the workplace, thinking about whether or not they have close contacts with others in the workplace, all of those things are going to come into play as you're looking for a creative solution to address whatever the situation is that the employee is bringing up. Right? And you're right. I mean, right now, we're talking about, "Oh, accommodation requests based on religion or a medical condition." But we have to remember that we think we know everything, but we do not. Right?

I mean, when it comes to our frontline workers, they may start raising requests or raising issues about wearing a mask because they see a safety issue that's associated with wearing the masks. And they are in a way better position at least initially to raise their hand and tell us if they say something, so that we can take a harder look at it and determine whether that's a situation that we need to address. Not from an ADA or from a religious accommodation perspective, but from a simple, plain and pure look, "We need to be providing a safe workplace, and we need to ask our employees to do their jobs in a way that doesn't put them in a situation where they're in harm's way." So, we just have to keep all of those things in mind.

Patty (18:47):

[inaudible 00:18:47] I think that's so true. Yeah, one of the other issues, to come up quite a bit is the remote work. Do you think employers are going to keep employees working remotely?

Katharine (18:56):

I think it really depends on the type of employer, right? I think that tech companies are a lot better positioned to allow their employees to continue to work remotely. Whereas if you have a situation where you need to have customer facing interactions, live and in person, you can't work remotely if you're running a restaurant. It's just that simple, right? And you can't work remotely if your job is to work in a warehouse or work in a manufacturing setting. Or try to sell things face to face, live and in-person with a customer. But there are a lot of positions, a lot of different types of companies that offer services and goods that don't require that kind of face to face interaction. And I think for those folks, we could see them say, "You know what, before the pandemic, if you would have said, you Mary wants to be able to work from home remotely as a reasonable accommodation, I would have told you that would never work'."

But now that they've actually seen it in practice, they might find that, "You know what? This work from home thing, it isn't so bad. And, if I go to a 100% virtual workforce on a permanent basis and maybe just allow my employees to hotel, if you will, if they need to come into the office for a particular meeting or a particular event, then maybe that's the best way for me to continue to do business. Even after the pandemic is over and after COVID has become hopefully one of those things that we get control of and we get to the point where we can manage its spread and control it. In our communities."

Patty (20:36):

So many businesses had just moved to those big open floor plans right before this, which I never liked as a lawyer because there was never any place to have a confidential communication. But now I think going to be such a long time before a lot of those office buildings fill back up with people. And what I hate is the candy dishes are gone, the pizza parties are gone, the potluck lunches are gone.

Katharine (20:58):

[inaudible 00:20:56]food trucks.

Patty (21:00):

Food trucks. But all of that kind of communal sharing, which going back to the issue of, "How do you build that camaraderie and that employee morale?" All of that's more challenging in a remote workplace. And I think one of the challenges for employers, is trying to figure out how to do that. And for managers, and I think for employers to make sure they're training their managers, so that the managers know how to manage remotely.

I mean, it's one thing to say, "Hey, go do your work." But it requires intentional communication between manager and employees, and between employees and co-workers. You're not going to just bump into each other in the hallway. It's not as easy to check in on each other or see what someone's working on. So intentional communication is becoming much more important. You can't just take an approach of out of, sight out of mind. If the managers aren't continuing to engage with their employees and knowing what they're working on, performance issues can quickly grow unchecked.

And what I've noticed here in over 20 plus years of practicing the more longer performance issues go without correction, the harder it is to correct it later. And the more likely the employee is to claim as discrimination or something else when someone finally tells them "No." Or finally tells them "You're not doing it right." Unfortunately, that has probably happened already because we had to move to this remote workplace so quickly without a lot of planning. I think we're going to have some problems with that moving forward that we need to address.

Katharine (22:23):

Yeah, absolutely. And I think that employers ... I'm certainly not saying that it's not a chaotic situation right now. Because there is still a lot of chaos in the workplace. Because things continue to change, right? And our state and our local laws are just moving targets for us. The CDC guidance is a moving target. But really it is time if you can take advantage, use the luxury of just a little bit of time to step back, right? If you're a business owner, if you're an HR professional step back, evaluate how your employees are doing, for those that are working remotely. And, hit the reset button, right? I mean, we didn't have hardly any time when we had to push everybody to remote work when the lockdown happened. And so things were messy, right?

I mean, we just wanted to make sure that our employees were safe. It was all about getting into your home-work environments, stay there, trying to do your best to do your best work from your home-work environment. But now that we've had the chance to catch our breath and see how that's working, it's time really to hit at reset and go, "Okay, how is it working?" Right? "Let me talk to my employees and ask them, 'what's working great for you? What's not working so well for you?'"

And then from my perspective, as a business owner, these are the things where I think that we have some challenges and some room to improve. And you really have to keep in mind that, you could mandate all day long and it's not going to do you a doggone bit of good, right? You're going to have, to have conversation with your employees about what they're capable of providing in that remote work setting and what is going to be acceptable to you. Because what may work just fantastic for Patty Pryor, might be an absolute nightmare for Katharine Weber, right? Where they are in their life, right? Then you just do. [Crosstalk 00:24:13]

Patty (24:13):

Katharine whatever is good for Patty Pryor is good for everybody else. I mean, this is what we all need to recognize. And if everyone did that, the world would get along so much better. We ought to talk real quickly about that next big thing. And the thing that I think is on a lot of employers' mind is, should they, or shouldn't they mandate that employees be vaccinated when the vaccine is available. And that's probably a more divided issue than the masks. It's certainly not a one size fits all answer. It's going to be very dependent on the company and its environment. It's like with the flu shots. This is a much easier argument for healthcare employers, but even there, we still get a lot of litigation coming out of it.

So for the non-healthcare provider, I think there's lots to consider. And I think the one key advice for employers to think about is not just doing a knee jerk reaction, but considering what you're doing and why. I know some employers are considering whether they might be required to mandate vaccines as part of providing a safe workplace under OSHA, but currently both OSHA and the EEOC recommend encouraging, not requiring flu vaccines.

I expect we're going to see some more guidance on this from one or both of these as the vaccines for COVID near reality. But I think you need to be careful about how you're approaching it. You also need to be aware that some states prohibit employers from requiring vaccines unless it's actually required by a law. And we've seen more of those type of bills being raised in state legislatures. So, that, certainly will be impacted by how elections come out.

And then there are certainly individuals who are anti-vaccine out there and really, lots of distrust of the process right now. So requiring or mandating vaccine is going to be controversial among your employees. Which means you're going to have a little bit of an employee morale issue, no matter which way you go on this, quite honestly. And then also I think that increases the likelihood that you're going to see litigation over requiring it. Similar to what we're already seeing with the mandatory flu vaccines.

Katharine (25:58):

Absolutely. And I know people get tired of hearing us use the phrase, interactive process, but the vaccines are just going to be another area where you are going to have to appreciate the fact that if you are in one of those situations where you're able to mandate a vaccine and you think that, that's the best thing to do, then even if that comes to pass and you're able to pull that off and mandate those vaccines, you are still going to have to be able to navigate requests for accommodation based on an underlying medical condition or based on a sincerely held religious belief. Because, those are absolutely two areas where regardless of whether we have some sort of a wall that allows us to mandate it or not, you are still going to have to make those accommodations or at least engage in the interactive process to determine whether there is some alternative to the vaccine that you might have to allow.

And if you have a union, you may have bargaining issues and with or without a union, employees may be protected from engaging in concerted protected activity. If they're all getting together and they're grassing about how terrible it is that, "The employer is requiring us to get a COVID vaccine" or alternatively, how terrible it is that, "The employer isn't making everybody get a COVID vaccine." Right? I mean so, it's hilarious because, like I said, I have four kids, right? And it's a very political debate. Very much a political debate at my house at dinner time.

And my family is very much split about whether or not they would be willing to take a vaccine if their employer required it. So, [inaudible 00:27:41] in a while I don't have any ADA accommodations or religious accommodations that are flooding around in that mix, it's just not as easy as some employers think that it might be to mandate that vaccine. So you really do have to keep that in mind. You have to start thinking about it now, and planning about it now, before you go out there and say something that you're going to regret. Because, you're going to have to walk it back publicly.

Patty (28:06):

I think that the whole of the country is counting on the vaccine, moving us all back to what we thought was normal. And I guess that certainly remains to be seen. But I think the vaccine more so than the election, is going to have the biggest impact on what becomes the new normal and what our future of employment is. Unfortunately, I think it's still a ways off, and will certainly depend on how effective that vaccine is. But regardless, I think some of the changes we've seen, may be here to stay like the remote work, either because it becomes more workable or because people become forced to accommodate more in that regard. So, we're long ways off from the new normal, but I think we're heading in that direction.

Katharine (28:42):

Absolutely. And I couldn't agree with you more. I mean, a lot has changed as a result of the pandemic. And the only thing for certain, I think that employers and business owners can count on, is that there will be more change, and more change, and more change. And the sooner you embrace that and accept it, it's just like being in the ocean, right? The tide is going to come in and the tide is going to go out. And you are going to have to change your position on a very regular basis. And the sooner you accept that, a lot easier things will become. And the other thing that you have to do is, you know you're going to be faced with all these changes. It's not something you're going to be able to avoid. So, make sure as a business owner, as an HR professional, that you have your resources lined up. That you know where you're going to go, to stay abreast of all of these changes in the law, both at the federal, state and local level. Because, those really will be your lifeline.

And I think we're really... sometimes I think we take it for granted at Jackson Lewis. We have all these wonderful resources that are available to us as attorneys. But, those same resources are largely available to our clients too. So all you have to do, if you're a business owner or an HR professional, and you're looking for some way to stay abreast of those changing pieces of CDC, OSHA, or Department of Labor guidance, or you want to stay abreast of the changing federal state or local laws related to COVID, all you have to do is go to our COVID page on our website. And there you'll find it, all of those resources. All kind of places where you can subscribe to different services that we offer to our clients, so that they can stay abreast of the state of the law at every moment of every day. And it's just a wonderful thing to have those kind of resources available to you.

So, for our clients and business owners out there, we're all in this together and we've got all kinds of great tools to help you navigate through this pandemic. So please do go out there and check out our website and take advantage of those resources. Until we talk again, we hope you enjoyed this podcast today. We really enjoy talking to you and for all our employers and HR professionals out there be well, stay healthy.

Alitia (31:02):

Thank you for joining us, on We get work™. Please tune in to our next program, where we will continue to tell you not only what's legal, but what is effective. For more information on today's topic, our presenters and other Jackson Lewis resources, or to subscribe to our podcast, visit jacksonlewis.com. As a reminder, this material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between Jackson Lewis and any recipient.

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