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The Legal Do’s and Don’ts of Returning to Workplaces

By Carol Patton, Contributing Editor for Human Resource Executive, published on May 7, 2020

As some jurisdictions around the country start gradually allowing businesses to reopen in the wake of the coronavirus pandemic, many employers are wading into uncharted legal territory as they aim to keep the workplace and their employees safe, all while refocusing on achieving business goals.

Among the key questions HR professionals have been asking Karina Sterman, partner at Greenberg Glusker law firm, is whether all employees must return to work at the same time.

“The first wave of returning people is something HR can do on a staggered basis,” she says.  “Schedule rest and meal breaks and focus on staggering [employees] so that you can maximize physical distancing between them.”

Sterman adds that EEOC guidance “expressly authorizes” employers to check employees’ temperatures. Another best practice is to work with an in-house or external “safety czar” who can evaluate your facility from both an OSHA and CDC perspective, she says.

If some employees don’t feel comfortable returning to work, ask why. Maybe they’ve been diagnosed with PTS (post-traumatic stress) and can’t be surrounded by co-workers or customers. What are they proposing as an accommodation? If reasonable, she says, implement it and communicate to the remaining workforce that you incorporated an employee suggestion that makes the workplace safer.

Even if their reason isn’t valid, still ask them for suggestions. If unrealistic, she says, you will need to make a decision about whether you want them to remain out on unpaid leave or part ways if you need their position filled.

However, be careful about using COVID-19 as an excuse to let people go, which can result in employee discrimination or retaliation claims.

“Usually, [employers] say [those workers] have been dead weight for the last five years but haven’t done anything about them and figure this is a good time to get rid of them,” Sterman says. “My question is, why didn’t that person get fired four months ago, before COVID-19? If you can’t articulate the reasons about what’s different now … you’re setting yourself up for a wrongful-termination suit.”

In addition to legal strategizing, HR also needs to consider that its workforce has been, undoubtedly, changed by the pandemic.

One of the most common mistakes HR professionals can make right now is assuming that what worked or didn’t work before the pandemic will or won’t in the future, adds John Bremen, managing director of human capital benefits and global head of thought leadership and innovation at Willis Towers Watson.

HR needs to abandon all prior assumptions and place every idea on the table, he says. But, above all, communicate workplace changes—the what and the why—before employees return to the workplace so they don’t feel ambushed. Tell them why the salad bar in the cafeteria will be closed or that the workspace has been altered due to social distancing.

The same goes for communicating new employee policies or practices. Tell them that wearing masks is now required or, if they’re feeling ill, they must stay or go home. Also, consider placing EAP counselors on-site to help employees deal with negative emotions like fear and anxiety, as well as the “constant pivoting of activity,” he says.

Bremen says employees trust employers who demonstrate these “big five” principles: authenticity, transparency, empathy, trust and credibility. These ideas can even be extended to employers that have had to let workers go: Some companies are making job-sharing platforms accessible to workers whose job no longer exists to help them find a new position at either their current employer or another organization.

While the pandemic has flipped the world of work upside-down, Bremen says, it’s also giving HR professionals opportunities for growth and change involving how work is performed.

“There’s a lot of invention going on right now,” Bremen says. “I’m seeing companies and leaders coming together really to support their employees. That part has truly been inspirational.”