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The New “Normal” Workplace - What’s Even Normal Nowadays?

Published:  May 14, 2020

Everyone wants to return back to their normal lives, normal work schedule, and all around normal routines. However, the word normal will soon be – not so normal. The new topic everyone seems to be buzzing about is the new “normal” that employees and employers will be returning to once businesses are given the green light to open their doors again. The question is what is the new “normal”? Specifically, what does that even entail, and how are businesses supposed to go about preparing for such changes not knowing how drastic they may be? From strict mandatory cleaning schedules, to employees refusing to return to work or requesting leave, and possible temperature checks, COVID-19 certainly has forced workplaces to shift their practices and to shift them quickly. Businesses need to know, understand, and implement new strategies before opening their doors again, and will need to be well versed as to what will be recommended and required of them.

One question many businesses are grappling with is how to keep employees safe and healthy when they are reunited with some, or possibly all, of their coworkers. With the unveiling of the four-phased approach to reopening the Massachusetts economy, businesses are on the edge of their seats waiting for Governor Baker and the task force committee to give them the thumbs up to resume operations. However, returning to the workplace will no longer be an easy task. Employers will now need to develop and plan for routine cleanings and sanitation – on a regular, if not more constant, basis. When and how often to clean, exactly what to clean, and who should be cleaning will need to be decided by employers. Let’s not forget about personal protective equipment (PPE) – are employers required to supply PPE to those performing the cleaning and sanitation? The short answer to these questions is – it depends. When Governor Baker and the task force committee unveil the reopening phases, mandatory workplace safety standards will also be revealed. That said, recommendations and guidance have already been provided by the Centers for Disease Control and Prevention (CDC) on how to clean and sanitize, and the Massachusetts Department of Public Health has established safety standards that businesses will need to adhere to when they reopen.

Another concern employers will be dealing with, when Governor Baker gives the go-ahead to open, are employees refusing to return to work. With the constant updates from social media and news outlets, many people are fearful to return to the workplace, and dread the thought of it. On the other hand, those who are unemployed and receiving the extra income due to the pandemic want to simply continue to be unemployed to get that extra money, with no care of when they return to work – at least until July 25, 2020, when the extra money stops flowing in. If I am a business owner, and rehire all my staff back after laying them off back in March – are they required to come back? If they refuse rehire, can they continue collecting unemployment benefits? Can I terminate them? These are many scenarios to the variety of questions employers will face with reopening, and it is important to know and have your local counsel on hand to be able to handle these scenarios, and to do so in a legal, nondiscriminatory way. Continuing along, other possibilities that could result include situations where some employees cannot come back to work because of their vulnerability to COVID-19, or if they currently live with others who have had the virus, which means coming back to the workplace would put others at risk. There is more to returning to the workplace than just simply rehiring employees back.

Additionally, employers must have an understanding of the extended leave available to certain employees under the Families First Coronavirus Act in order to respond appropriately. Specifically, some employees may not come back to the workplace because they wish to use the paid leave available to them based upon their qualifications. This results in numerous questions, in particular, who does the extended leave apply to, how much leave is available, and what are the qualifications an employee needs to check off their list before they can be approved? These are just a few questions that employers will need to be able to answer. For instance, ABC Inc. laid off 100% off their workforce due to the pandemic because they were non-essential, and all projects were postponed. Two weeks later they were given the okay to reopen, and they rehired their entire workforce back, but Sally, a receptionist, requested time off due to the closing of her son’s childcare. Is Sally able to use the extended leave because of this reason? Must ABC Inc. approve this request, and is it even a qualifying reason? What if the facts were different and Sally was working remotely – could she request intermittent leave based upon caring for her son during the day? The possibilities are endless, and because so, having local counsel readily available will ease all confusion, tension, and worry.

For example, let’s say ABC Inc.’s employees return to work - what now? Can the employees just walk in, punch in, and get right to work? Well, it depends. The Equal Employment Opportunity Commission gave the go-ahead for employers to take temperature checks, and employers can inquire about symptoms relating to COVID-19. However, just like everything else, this process is not as easy as it sounds either. First of all, employers need to determine and implement a plan and procedure on how the temperature checks will take place. Lining everyone up side by side and administering a thermometer one by one is not going to cut it – what about privacy and confidentiality? Furthermore, the symptoms employers can inquire about are only the symptoms they know to be associated with COVID-19, which include but are not limited to fever and shortness of breath. So employers – remember this - while asking about coronavirus symptoms is permitted, employers should not ask about symptoms of other conditions.

Finally, employers must not forget to remain in compliance with other state and federal laws such as the Americans with Disabilities Act, Workers Compensation, OSHA, HIPAA, and FMLA, among others - as if COVID-19 didn’t already give us it’s all.

Sarah M. Ryzewski, Esq. and Amy B. Royal, Esq. specialize in management-side labor and employment law at Royal P.C, a woman-owned, boutique, management-side labor and employment law firm. Please feel free to contact Sarah or Amy with any questions on the issues associated with reopening the physical workspace, or for any other labor, employment, and business law issues via telephone at (413) 586-2288 or via email at sryzewski@theroyallawfirm.com or aroyal@theroyallawfirm.com

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