Reimagining the Workplace: Strategies for a Positive Way Forward in the “New Normal”
June 17, 2021 | Kendra Simmons, Fredrikson & Byron, P.A.
The past year-plus presented employers with countless challenges with the changes that COVID-19 has presented, most recently the vaccine and the CDC’s revised guidance regarding face coverings and fully-vaccinated individuals. While it feels like we’ve reached the light at the end of the tunnel, in some ways the workplace and employment relationship will be changed forever.
What does the future of the workplace look like?
The answer to this question largely depends on the nature of your business. In certain industries and positions, remote work is simply not possible. However, since COVID forced many businesses to make remote work “work,” opinions on it have changed. In the post-pandemic “new normal,” hybrid workplaces are expected to be more common, and employees are expected to demand more flexibility as employers struggle to attract and retain qualified employees. Many employees report that they would leave their job and/or work for less money in exchange for more flexibility and the option to work remotely.
Determine the circumstances under which remote work works for your business. Develop and consistently enforce clear written policies and expectations, document productivity, and address performance issues. Ensure your confidential and proprietary information is protected—both from internal and external attacks. As remote work expands, we’ve seen employee theft of confidential information and trade secrets increase as third parties have developed new tricks and stepped up their attacks. Don’t make yourself an easy target.
The pandemic will also affect what your workplace looks like for those working in person. As you reopen your office, to the extent you haven’t already, (1) document your plan, (2) enforce it consistently, and (3) be aware of—and avoid—any impact to employees based on any protected class. Consider reopening in phases or alternating schedules. Until the pandemic is over, and even when it is, employers will need to consider what safety measures they can/should continue. There will also be some aspects of remote work that make sense to maintain for efficiency, such as continuing to hold certain meetings virtually. Of course, there are some elements of the in-person workplace for which there is no suitable replacement.
What to do about the vaccine?
As with remote work, employers need to decide what makes sense for their workplace regarding the vaccine—whether it will be required, encouraged, or incentivized. If you require the vaccine, be aware of the guidance the EEOC (and any other relevant authority) has issued and the additional obligations you have as an employer when mandating the vaccine, including but not limited to providing a reasonable accommodation to employees who can’t get the vaccine for disability or religious reasons. For these reasons, few employers are actually requiring vaccination, and those that are tend to be in the health care, long-term/residential care, or manufacturing environments where employees work in close proximity to each other or to patients/clients.
Most employers are either encouraging and/or incentivizing vaccination among their workforce. Encouragement has come largely through education (see Section K at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws for various resources). Incentives range from additional paid time off to get vaccinated and recover from any side effects to handing out a gift card or small one-time payment of $100-125. Caution that any incentive is taxed appropriately and is not so large as to be “coercive” in the sense that employees can’t reasonably decline. Keep record of any vaccination status separate and confidential.
Regardless of your decision regarding the vaccine, be aware of evolving CDC and OSHA guidance. With the CDC recently revising its guidance to declare that fully-vaccinated individuals don’t need to wear face coverings in most situations, more employees may be willing to get vaccinated. Those who are can now meet in person without having to mask up, among other things. While most employers are proceeding with the honor system, if you request proof of vaccination, limit your request to that (and not seeking other medical information) and maintain any such information separately and confidentially. Unvaccinated employees should continue following precautions like wearing face coverings and maintaining social distancing; employers should continue these measures before excluding unvaccinated employees from the workplace entirely.
The pandemic provides a unique opportunity for employers to reconsider the way they work. The market may force changes in everything from remote work to wages to benefits, and more. Use this opportunity to determine what works best for you. Whatever that is, document, communicate, and leave yourself room for flexibility.
Kendra Simmons is a Shareholder at Fredrikson & Byron, where she helps employers prevent and solve problems. She is an experienced advisor and litigator, representing employers most frequently in the health care, construction, manufacturing, transportation and technology industries. Her expertise includes matters involving equal employment, non-competes and other restrictive covenants, and drug and alcohol testing.