In the past, once a decision was made to implement a change in workplace policy, a company could plan that the policy would stay in place for the relatively long term. Not anymore.
“Gone are the days where HR and legal teams could have a phone call on Monday, make the change effective on Friday, and not talk in-between,” says Claire Deason, an employment and labor attorney and shareholder with Littler, one of Workday’s product compliance law firms.
That’s because with government guidance and laws around COVID-19 changing so rapidly, there have been situations where Deason has had to change her workplace policy guidance for clients within the same day.
To make matters even more complicated, requirements for handing safety and health issues during the pandemic vary considerably from one locality to the next—often from county to county—and change regularly. That’s the landscape companies are facing as they adjust policies around the highly critical issue of workplace safety. “It has been very challenging for employers to stay on top of, and for that reason, HR and legal are working closer together than ever before,” Deason says.
In part two of this Q&A with Deason, she offers her take on designing policies and protocols that align with constantly evolving government guidelines and legislation.
It’s clear workplace safety will be a primary focus from a compliance perspective. What are some of the issues HR professionals should keep in mind as they began to consider changes to workplace safety policies?
We're starting to see more opportunities to get back to the workplace, at least in some locations. So the immediate question is, how do employers do that safely for their employees? That raises all sorts of policy and practical considerations, including how to meet obligations under the Occupational Safety and Health Administration (OSHA) rules. Then there are considerations such as how or whether to implement temperature taking, antibody testing, or providing masks and gloves, requiring masks and gloves, distancing employees from one another—a long list.
On a personal level, employers have to consider how to address employees’ worries about coming back to work and how to practically roll out social distancing in their workplaces. Can you have everybody eat lunch at the same time when there’s a small lunch room in a 15-person office, because when you measure the lunch room they can't stay six feet apart from one another?
There are very specific details for the considerations employers should make in trying to decide how to make the workplace a place people can actually return to, without putting the employees and the company at risk.
How are COVID-19 government guidelines and laws impacting current company policies?
Another responsibility and challenge is complying with the myriad protected and paid sick leave rules. There’s an unbelievable amount of regulatory nuance and detail, and these nuances go all the way down to the county and city level.
For example, the federal Families First Coronavirus Response Act (FFCRA), is partly an expansion of the Family and Medical Leave Act (FMLA), but it’s slightly different because there are different triggers and eligibility terms for the new paid leave component. Our clients and practice groups have had to quickly learn what those rules are—and in a time when the regulations were unprecedentedly fast-tracked. And then you layer that on top of existing sick leave rules that many states have passed; protected paid sick-leave entitlements in a variety of states and cities. We’re interpreting state guidance for whether and when state-level paid leave applies to all kinds of new absences from the workplace. And how these different laws work together is a big question, and the answer always depends on the facts.
Ultimately, legal guidance on workplace policies will depend on what’s coming from the various state agencies that enforce those rules and as we go on in this pandemic, how agencies and courts are interpreting the statutes and regulations describing the rules.