This article, written by attorney Jim Reidy, was originally published by Business NH Magazine and can be found here.
Spring is finally here, and summer is just around the corner. Could our long COVID winter also finally be over too? The signs suggest that may be the case. Masks are off, most vaccine mandates have been shelved and many people are returning to the workplace.
Is this like the scene in the Wizard of OZ where we can tell people to “Come out, the wicked witch is dead?” Ok, maybe we should slow that roll for the time being because we have seen false peaks before only to experience another surge. However, we can proceed with some cautious optimism and return to work’s new normal.
The New Normal
After more than two years of shutdowns, furloughs, daily screenings, quarantines, masks, vaccines, remote and hybrid work arrangements and other COVID related policies and practices, workplaces are opening back up, but things have changed. And some trends represent a new normal.
• Increased wages. Employers are having to raise wages to keep up with inflation and in response to competition for employees in the market. While the federal and state minimum wage rates are $7.25 per hour, most employers have a starting wage that is much higher. The stiff competition in the market and the need to retain talent is causing employers to update their wage classification systems.
• Employers replacing FTEs with contingent workers as cost savings. There are limits as to how high wages can go so some employers are looking at their staffing needs and, in some cases, replacing or supplementing their full-time and other regular employees with temporary or contingent workers.
• Changes to workplace privacy laws. COVID laws, regulations and guidance gave employers a new portal into employee health information and to some extent information about the health of their families, employee travels, home life and activities. Remote work also opened a virtual portal where employers could look into employee homes and, more than before, monitor their online activities. In response, lawmakers on the state and federal levels are exploring updated and new privacy protections.
• Expanded data collection. In recent years, largely because of equal pay initiatives, the federal government has sought more wage information from covered employers. The pandemic paused some of those requirements, but those are coming back online, and employers are likely to receive similar requests from state and federal agencies seeking information about their operations, finances, policies and the composition of their workforces.
• Increased mobility. Gone are the days when employees stayed with the same employers for all or most of their careers. With an average of 4 million workers leaving their jobs in each of the four months between December 2021 and March 2022, it is projected that employers may continue to see attrition or greater mobility in their ranks. This is why employers are investing in ways to attract and retain talent but they are also being careful in hiring and judicious in the benefits provided knowing that employees could still be lured away by
• More hybrid/remote work arrangements. COVID taught us that many employees could work effectively from home or just about anywhere. With advances in technology, employees reexamining work life balance, child care needs and other demands outside the office, employers, anxious to retain talent, will likely to continue hybrid and remote work arrangements while also reviewing their space needs.
• More data breach protections. The risks of data breach, ransomware and other attacks on an employer’s finances and operations are increasing. In response, employers should continue to improve firewalls and internet security.
With these trends and new workplace realities, CEOs and others in the C-suite need to understand these issues and adjust their plans if they want to succeed in this post-pandemic world. Some of the challenges they need to navigate include:
• Getting employees to overcome their fear of getting sick and know it is safe to return to the workplace. COVID amplified our fears about getting sick, and employers need to understand those concerns as they try to get employees back to work.
• Reviewing COVID related remote work accommodations. Workplace accommodations generally aren’t supposed to be indefinite and with the pandemic waning, employers need to revisit many of the accommodations from the last two years to determine if those still make sense for the organization.
• Accommodating employees with school-aged children. With two years of school closures, and hybrid or remote learning and similar changes at daycare facilities, there has been an enormous strain on working parents. The challenges continue for many parents, and employers need to be as flexible as possible with schedules if they want to retain
• Dealing with employees who prefer to work remotely. Employees have more options now than any time in recent history, and employers must decide if the employees who want to work from home can do so effectively or if they are prepared to lose those employees if they resist returning to the office.
• Addressing the haves and the have-nots regarding remote work. Employers who permit some employees to work remotely or with a hybrid schedule need to be prepared to respond to complaints from employees who are required to be at work. Hint: “Because I said so” may no longer be an acceptable answer.
• Commuting/public transportation issues. Due to the rising cost of fuel, commuting costs may be a reason why an employee requests to work from home, at least on a part-time basis.
• Maintaining many of COVID’s workplace safety standards. As employees remove masks and return to a near pre-COVID existence, employers still need to maintain many safety standards from the last few years. This could help with attendance and productivity and participation in wellness programs. It could also help in the event of another variant surge or other public health crisis.
Legal Issues and Challenges
Now that many COVID-related restrictions have ended, legislatures and government agencies have turned their focus from emergency relief to other priorities that took a backseat to the pandemic. Government investigations, meaning in-person visits, have resumed, and courts have opened to the public instead of just holding virtual hearings. Already employers are seeing more actual or threatened claims from regulators and employees. This includes:
• Wage and hour timekeeping challenges. With flexible schedules, virtual meetings and remote work, many employers weren’t as diligent about tracking employee hours. There could be a wave of overtime and other unpaid wage claims coming.
• Effect of bonuses on overtime. Many employers used bonuses to retain talent and to recruit new employees but if those bonuses were nondiscretionary (meaning the employee was aware of how the bonus was calculated and relied on those benchmarks) then employers are responsible for recalculating overtime earned during the bonus calculation period.
• Monitoring of social media and employees. Many employers used social media and other tools to monitor employee work activities, especially when the employee worked remotely. Privacy laws vary from state to state and improper monitoring of employees could result in claims against those employers.
• Lagging and new discrimination/retaliation claims. Often discrimination claims decline when unemployment numbers are low because the employee has other employment options. While unemployment is still low, employers are starting to see claims related to sexual harassment (largely related to remote employees who engaged in misconduct) as well as discrimination claims from employees denied medical or religious exemptions from vaccine mandates or those who were denied reasonable accommodations, and others claiming retaliation after voicing concerns about workplace discrimination.
• Renewed focus on independent contractors. After a hiatus during the Trump administration, the National Labor Relations Board and the U.S. Department of Labor have renewed their focus on misclassified independent contractors and workplace claims where two entities working together could be considered joint employers.
Creating a Post-COVID Workplace
We can assume that things will not be the same as they were before COVID. That isn’t necessarily a bad thing as some of the lessons learned can help create a safer, more stable and productive work environment. Going forward employers should consider the following to adapt and thrive in the months and years ahead:
• Clarifying new work rules/expectations. This will help avoid confusion, especially as employees return and as job responsibilities, policies, workplaces and arrangements are reconfigured.
• Updating recruitment/hiring practices. Virtual hiring and screening had its benefits. So too did the policies and practices that enticed applicants to apply for open positions. Those should not be abandoned.
• Redesigning or updating workspaces. While shared spaces and equipment may not be something businesses go back to, at least not for a while or without proper cleaning policies, many employers, especially if remote work is possible, have realized that they can do as much or more with less space.
• Revisiting leave policies. Gone are the days of rigid and limited vacation and sick leave polices. Due to changes in state laws or simply changes in the needs of employees, employers are adopting more and flexible paid leave policies to help create a work-life balance and retain talent.
• Improving performance evaluation methods to monitor remote workers. Employers need to consider 360-degree performance evaluations and other tools and methods to better evaluate performance. They also need to train managers on how to better motivate, integrate and assess employee productivity. That is especially needed for remote workers.