Navigating the Post-COVID Workplace

Spring is finally here, and summer is fast approaching. Could our long COVID winter also finally be over? The signs suggest that might be the case. Masks are removed, most vaccination mandates have been suspended and many people are returning to the workplace.

Is it 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 this roll down for now because we’ve already seen some false spikes before experiencing another surge. However, we can proceed with cautious optimism and return to the new normal of work.

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 reopening, but things have changed. And some trends represent a new normal.

These include:

■ Increase in salaries. Employers must raise wages to keep up with inflation and in response to competition for employees in the marketplace. While federal and state minimum wage rates are $7.25 an hour, most employers have a much higher starting wage. Stiff market competition and the need to retain talent are driving employers to update their salary classification systems.

■ Employers replace FTEs with casual workers to reduce costs. There are limits on the height of salaries, 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 casual workers.

■ Changes to privacy laws in the workplace. COVID laws, regulations and guidelines have given employers a new portal for employee health information and to some extent information on their family’s health, employee travel, home life and activities. Remote work also opened up a virtual portal where employers could view employees’ homes and, more than before, monitor their online activities. In response, state and federal lawmakers are exploring updated and new privacy protections.

■ Expanded data collection. In recent years, largely as a result of equal pay initiatives, the federal government has requested more wage information from covered employers. The pandemic has suspended some of these requirements, but these 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 membership composition. workforce.

■ Increased mobility. Gone are the days when employees stayed with the same employer for all or most of their career. With an average of 4 million workers leaving their jobs in each of the four months between December 2021 and March 2022, employers are expected to continue to see attrition or greater mobility within their ranks. This is why employers invest in ways to attract and retain talent, but they are also careful in hiring and judicious in the benefits offered, knowing that employees could still be attracted by another opportunity.

■ More hybrid/remote work arrangements. COVID has taught us that many employees can work effectively from home or just about anywhere. With advances in technology, employees re-examining work-life balance, childcare needs, and other demands outside of the office, employers keen to retain talent will likely continue the terms hybrid and remote working environments while reviewing their space needs.

■ More protection against data breaches. The risks of data breaches, ransomware and other attacks on an employer’s finances and operations increase. In response, employers should continue to improve firewalls and Internet security.

Main challenges

With these trends and new workplace realities, CEOs and other C-suite members must understand these issues and adjust their plans if they are to succeed in this post-pandemic world. Some of the challenges they face include:

■ Ensure that employees overcome their fear of getting sick and know that it is safe to return to work. COVID has amplified our fears of getting sick, and employers need to understand those concerns as they try to get employees back to work.

■ Review COVID-related remote work arrangements. Accommodations in the workplace are generally not meant to be indefinite and with the waning of the pandemic, employers need to revisit many of the accommodations from the past two years to determine if these still make sense for the organization.

■ Greet employees with school-aged children. With two years of school closures and hybrid or distance learning and similar changes to child care, working parents have come under enormous pressure. Challenges persist for many parents, and employers need to be as flexible as possible with schedules if they want to retain these employees.

■ Dealing with employees who prefer to work remotely. Employees now have more options than ever in recent history, and employers must decide whether employees who want to work from home can do so effectively or are willing to lose those employees if they resist returning to work. desk.

■ Address the haves and have-nots of remote work. Employers who allow some employees to work remotely or with a hybrid schedule must be prepared to respond to complaints from employees who need to be at work. Hint: “Because I said so” may no longer be an acceptable answer.

■ Travel/transit issues. Due to the rising cost of fuel, travel expenses may be a reason an employee asks to work from home, at least part-time.

■ Maintain many COVID workplace safety standards. While employees are removing masks and returning to a near pre-COVID existence, employers still have to maintain many of the safety standards of the past few years. It could help with attendance, productivity, and participation in wellness programs. It could also help in the event of another flare of variants or another public health crisis.

Legal issues and challenges

Now that many COVID-related restrictions have ended, legislatures and government agencies have shifted their focus from emergency relief to other priorities that have taken precedence over the pandemic. Government inquiries, i.e. in-person visits, have resumed and courts have opened up to the public instead of just holding virtual hearings. Employers are already seeing more real or threatened claims from regulators and employees. This includes:

■ Salary and timekeeping challenges. With flexible hours, virtual meetings, and remote working, many employers weren’t as diligent about tracking employee hours. There could be a wave of overtime and other unpaid wage demands.

■ Effect of bonuses on overtime. Many employers have used bonuses to retain talent and recruit new employees, but if these bonuses were not discretionary (i.e. the employee knew how the bonus was calculated and relied on those benchmarks), employers are responsible for recalculating overtime earned during the premium calculation period.

■Social media and employee monitoring. Many employers used social media and other tools to monitor employee work activities, especially when the employee was working remotely. Privacy laws vary from state to state, and improper monitoring of employees could lead to claims against these employers.

■ Delay and new complaints of discrimination/retaliation. Often, discrimination claims decline when the number of unemployed is low because the employee has other employment options. While unemployment is still low, employers are beginning to see claims related to sexual harassment (largely related to distant employees who are at fault) as well as claims of discrimination from employees denied medical or religious exemptions vaccination warrants or those who were denied reasonable accommodations, and others have demanded retaliation after raising concerns about workplace discrimination.

■ Renewed focus on independent entrepreneurs. After a hiatus under 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 won’t be the same as before COVID. This isn’t necessarily a bad thing as some of the lessons learned can help create a safer, more stable, and more productive work environment. Going forward, employers should consider the following to adapt and thrive in the months and years ahead:

■ Clarify new work rules/expectations. This will help avoid confusion, especially when employees return and job responsibilities, policies, workplaces and arrangements are reconfigured.

■ Updated recruiting/hiring practices. Virtual hiring and screening had its advantages. The same goes for policies and practices that encourage candidates to apply for vacancies. These should not be abandoned.

■ Redesign or update workspaces. While shared spaces and equipment may not be something companies return to, at least not for some time or without proper cleaning policies, many employers, especially if remote working is possible, have realized that they could do as much or more with less space.

■ Review leave policies. Gone are the days of rigid and limited vacation and sick leave policies. Due to changes in state laws or simply changes in employee needs, employers are adopting more flexible paid time off policies to help create work-life balance and retain talent.

■ Improve performance evaluation methods to track teleworkers. Employers should consider 360 degree performance reviews and other tools and methods to better assess performance. They also need to train managers on how to better motivate, onboard, and assess employee productivity. This is especially necessary for remote workers. not

Lawyer Jim Reidy is a shareholder in Sheehan Phinney in Manchester, where he is chairman of the firm’s labor and employment practice group.

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