The New Workplace: Part I – Transitioning Back

As the country begins to look forward to the next phase of the coronavirus pandemic, many employers are wondering how their operations will need to adjust to the “new workplace.” COVID-19 is likely to have long-lasting effects on American life, including how we work. “The New Workplace,” is a two-part newsletter series that will examine what changes are likely and how employers can best handle this unprecedented territory.

When is the Right Time?

While state governments are going to make the call on when a reopening is appropriate, employers need to be aware of the considerations that will determine the timeline. Governors from several northeastern states, including Andrew Cuomo in New York, Phil Murphy in New Jersey, and Ned Lamont in Connecticut, have pledged to coordinate a regional reopening of the economy.

Governor Cuomo has discussed his criteria for reopening the state. During a press conference last week, Governor Cuomo said that once the rate of infections gets to an acceptable rate, a “phasing up” of businesses would occur similarly to how they shut down: by percentages. This means that initially, only 25% of the workforce would be allowed to return, then 50%, then 75%, until finally 100% of the workforce can return.

Governor Cuomo added that industries would be examined separately. Factors including the essential nature of the business and the risk of infection to employees would be assessed.

Employee safety needs to be a top priority during this transition back. Commuting is another factor that needs to be evaluated. If a large percentage of an employer’s workforce uses public transportation to get to work, flexible scheduling may be necessary. Split shifts can be used, where half of the workforce comes in for the first half of the day, while the other half works the second half of the day. Employee meal breaks may also be staggered to limit the number of workers in a break room at one time. The appropriate measures depend on what is practical for each employer.

Social distancing measures would also need to be thoroughly planned and enforced effectively. Industries where employees have in-person customer interaction, such as the retail industry, need to create practices which limit customer interaction. This includes curbside delivery or limits on the number of customers allowed into a store at one time.

Working Remotely

Governor Cuomo also said that in the wake of COVID-19, many workplaces need to be “reimagined.” For many employers, this may mean that a large percentage of employees, or even their entire workforce, works remotely.

If an employer shifts to telecommuting, there are several considerations to take into account. This includes a policy which outlines the employees’ rights and responsibilities, proper cybersecurity protections, and strong communication. For more information on how to enact strong telecommuting procedures, please check out our newsletter article on working from home.

Showing Empathy

The coronavirus has had devastating effects on the country’s workforces. American workers have filed 30 million initial unemployment claims since March 14, with that number expected to rise as the pandemic continues. The emotional, financial, and physical impact that this is taking on citizens cannot be understated.

With these impacts in mind, employers need to inspire their employees and boost morale when the time comes to return to work. As mentioned above, the health and safety of all employees needs to be the foremost concern. Return to work protocols must be thoroughly thought out. How will social distancing be maintained? How will you manage positive COVID-19 results? A well-executed plan can assuage many anxieties that employees have about returning to work.

Employers also can practice increased kindness and compassion for their employees’ concerns. This situation has reinforced how we all truly rely on each other in so many ways, especially to stay healthy. Listen to your employees worries and address them in a way that demonstrates empathy.

Addressing Furloughs

Many employers have had to make the difficult decision to furlough some or all of their employees while the shelter-in-place orders are in effect. Retaining as many employees as possible needs to be a top priority. Once these orders expire or are revoked, employers will have to determine which employees will return to work.

In making that determination, employers must be careful that they do not leave themselves open to discrimination claims. If employees return in waves, employers need to conduct a careful analysis of which employees are going to return first and for what business justifications. For example, if an employer brings back only young employees to start but keeps older employees on furlough in an effort to keep them safe, this could open the employer up to an age discrimination claim.

It is best practice for employers to consult their Human Resources department or employment attorney to ensure that the decisions are based on legitimate business reasons. If an employee brings a discrimination claim, an employer will need to prove that these decisions were not based on discriminatory or retaliatory reasons.

Many businesses will suffer great losses during the shutdown, and some employees who were initially furloughed will need to be laid off. It is crucial that employees openly communicate with these employees. Keep an honest and direct line of communications with employees, and if termination is necessary, let the employee know as soon as possible. Depending on the circumstances and nature of the financial losses, a reduction-in-force (“RIF”) may be necessary.

Analyzing Reductions-in-Force

If an employer is going to conduct mass layoffs, they will need to perform a RIF analysis. Any RIF must be carefully planned and executed. If a RIF is implemented improperly, an employer opens themselves up to discrimination claims, and potential negative effects on the remaining employees’ morale.

When performing a RIF analysis, employers need to choose objective criteria (e.g., seniority, performance) to determine who will be laid off. Using objective measures helps to diminish the potential for discrimination claims. Once an employer selects what criteria they are going to use, it needs to apply the criteria consistently across its workforce to determine who will be let go.

Even after an employer has determined which employees will be terminated using the objective criteria, that list should be analyzed to verify that the RIF does not have a disproportionate effect on employees in protected classes, such as race, gender, or age.

Employers also need to consider the Workers Adjustment Retraining and Notification (“WARN”) Act. Under the federal WARN Act, employers with 100 or more employees must provide employees, bargaining representatives, and local government officials with 60 days advanced written notice of a mass layoff or plant closing. The federal law defines a mass layoff as an employment loss of at least 33% of full-time employees and a minimum of 50 employees at a single site. Several states also have their own WARN laws. For example, the New York WARN Act applies to businesses with 50 of more full-time workers in New York State who eliminate as few as 25 employees at a single employment site. New York WARN normally requires 90 days advanced written notice.

However, most WARN laws do have notice exceptions for unforeseeable business circumstances. The unexpected economic downturn that resulted from the coronavirus does qualify as an unforeseeable business circumstance. This exception does not remove the notice requirement but requires businesses to provide the affected employees as much notice as practicable. Therefore, an employer who meets the WARN requirements needs to provide the terminated employees with as much advanced notice as they possibly can.

On April 17, 2020, Governor Cuomo issued an executive order that created another WARN exception for employers that receive funding under the Payment Protection Plan. Similar to the unforeseeable business circumstance exception, the new executive order does not relieve employers of the obligation to provide WARN notice but shortens the notice period if the employer is unable to give the requisite 90 days’ notice.

Conclusion

As the country slowly reopens from COVID-19 shutdowns, employers need to prepare for a workplace that has been fundamentally changed. During this time period, decisions must be carefully considered and implemented to avoid potential pitfalls. If you have any questions on reopening your business, please reach out to us so we can help. Also, be on the lookout for part two of our “New Workplace” series, which will explore how employers can move forward after reopening.

Jules Halpern Associates LLC

Workplace and Education Law Advisors

Jules Halpern Associates LLC
JULES HALPERN ASSOCIATES LLC is a boutique law firm committed to serving our clients in all facets of their workplace issues. We provide personalized, practical advice that resonates with our clients’ business objectives.
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Jules Z. Halpern

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