It has been just over two years since the Centers for Disease Control and Prevention confirmed the first domestic case of COVID. Now, the U.S. has confirmed over 78 million novel coronavirus cases and 940,000 deaths. To say that the pandemic upended our lives is an understatement. Employers, of course, were not spared strain and disruption — at times over the past 24 months, it seemed that each day of the pandemic presented a new, thorny employment-related challenge for which there was no clear solution.
As COVID turns two and we work through the next phase of the pandemic, what have we learned? Here, our team identifies lessons that may reshape the future of labor and employment law long after COVID becomes a routine workplace risk to manage.
The Continuing Compliance Challenges Faced by Multi-State Employers
The patchwork of state and local labor and employment laws was difficult for multi-state employers to manage before the pandemic. COVID complicated those challenges, some would say exponentially. There has long been a void of federal laws in some key areas like paid sick leave and childcare support. That void was exposed during COVID and almost certainly contributed to the proliferation of state and local laws on everything COVID-related, from who is an essential worker to workplace safety standards to all sorts of paid leave permutations. Whether it was supplemental COVID sick leave in California, mask mandates in Washington, or paid, public health emergency leave in Colorado, every day in the last two years seemed to bring a new “COVID law.”
Two years later, the level of legislative activity in the employment space at the state and local level is only gaining momentum and moving into areas outside the pandemic. For example, Texas recently passed a law opening the door to individual supervisor liability in sexual harassment cases. States and local governments also continue to be particularly active in the areas of pay equity, salary history bans, ban the box initiatives, and paid sick and vacation leave. While a federal law in some of these areas, especially paid sick leave and childcare leave, could potentially preclude and supersede conflicting state and local laws (like the OSHA ETS attempted to do), there does not appear to be significant movement in that direction. Given the current trend, multi-state employers are advised to continue to devote time and resources to tracking and compliance with state and local laws. Whether is it done through a compliance department, an outside vendor, or outside counsel, it is essential to develop a multi-prong strategy. The pandemic just complicated what was already a significant and growing challenge.
– Michelle Mahony
COVID Necessitated HR Agility—Let’s Hope It’s Here To Stay
The pandemic ravaged businesses and workers, and much of the fallout landed at HR’s doorstep. Early on, HR professionals found themselves at the center of difficult choices about critical issues like employee safety and health and business continuity. At times, key considerations seemed irreconcilably incompatible—it was not long ago that employers were left to grapple with the question of whether it was possible to keep business running while simultaneously protecting employees from a life-threatening virus about which we knew almost nothing and for which there was no vaccine and no effective treatment. In short, the past two years have required HR professionals—traditionally accustomed to operating in environments bounded by clear policies and procedures—to become comfortable operating despite significant uncertainty. And that’s a good thing.
The HR agility forged in the throes of the pandemic will prove valuable long after COVID becomes a routine, manageable risk, and employers should work to maintain and further develop this agility, particularly with respect to:
- Keeping focus on people-centered culture—COVID reminded us that businesses cannot operate without people, and one of the pandemic’s silver linings was a shift in employer focus back to employees. HR professionals are now positioned to continue to lead through innovation in this regard—think, for example, of the many employers who, prior to COVID, viewed flexible working arrangements as unworkable and who now, with the benefit of strong HR leadership, plan to make such arrangements permanent.
- Re-envisioning employee communications—The pandemic taught us that our workforces are hungry for communication, especially during challenging times. And HR professionals led the way in crafting pandemic-related messages that kept employees informed and were transparent about risks and unknowns. Particularly effective were communications that made use of technology—video messages and virtual town hall meetings helped to bridge physical distance and to create community from afar.
- Harnessing technology to make data-driven HR decisions—As the pandemic wore on, many HR leaders helped employers realize that effective communication—the type of communication that generates engagement and loyalty—is not a one-way street. These leaders leveraged technology to build real-time data sets that drove decisions about the pandemic—g., surveying employees about whether they felt comfortable returning to the office, or whether they would agree to get vaccinated.
- Valuing the “good” over the “perfect”—The COVID pandemic rendered risk-free HR solutions out of reach for most employers. Instead, HR departments were forced to make critical decisions based on imperfect information. Sometimes, those decisions turned out to be incorrect, but in many cases, nimble decision making ensured business continuity when it would not have been possible if employers had waited on a “clear” or “perfect” answer.
– Corey Devine
Workplace Health and Safety Infrastructure—What Improvements Can Employers Implement Going Forward?
Over the years, federal and state safety and health laws have generally required health care employers to protect the workplace from risks posed by infectious diseases. Yet until COVID, most employers outside the health care setting had little reason to assume that such obligations could apply to them. COVID changed that and made clear that employers in all industries must consider measures to guard against infectious disease outbreaks, including employee vaccination and testing, masking, distancing, leave and remote work arrangements, temperature checks, contact tracing, cleaning, and ventilation. We live in a world in which diseases like COVID are appearing with greater frequency. The safety and health infrastructure that employers have implemented in response to COVID should be the foundation for efforts to limit the spread of infectious disease in workplaces in the future. As employers consider how best to convert their COVID safety policies to more general infectious disease policies, key items to consider include:
- Should the return-to-work protocols developed for COVID, including temporary remote work assignments or return-to-work testing, be implemented for other illnesses as well?
- Is it time to re-think open-work and other high-density seating arrangements?
- Should employers do more to encourage and incentivize employees to get common flu vaccines?
– Mike Muskat
Stay Flexible to Resolve Employment Disputes Efficiently
The future of work, at least for many employers, involves much more flexibility, and this flexibility likely will extend to resolving employment-related disputes. The pandemic has created a backlog of cases in both the federal and state systems. Efficiency is not materially better in arbitration—most arbitration proceedings are running more slowly than they did pre-pandemic. Trial settings are hard to come by. So, too, are in-person hearings, depositions, and mediations. Early in the pandemic, these delays were tolerable, but two years in, waiting for a trial date that may never come is, for many employers, no longer acceptable. The interruption of normal, formal channels for dispute resolution has led to innovation in the disposition of employment disputes. During the pandemic, employers have sought out creative options for resolving employment-related disputes despite dysfunction in the courts and in arbitration. Many employers are now taking a closer look at employment-related disputes earlier, without formal discovery, and making attempts at early resolution. Such attempts may involve informal exchange of “discovery” materials early on in a case, or pre-litigation settlement discussions facilitated by skilled mediators. The success of these pre-litigation discussions has led many employers to include clauses for pre-litigation arbitration or mediation in their employment, arbitration, settlement, and other workplace agreements, with the goal of trying to get the parties to a neutral space early to discuss resolution. As we inch closer to normalcy, employers should continue to utilize technology and the cost savings associated with remote hearings, depositions, and mediations. Particularly effective during the pandemic has been hybrid mediation—combining in-person and remote appearances. In this scenario, one party might gather in the same place but communicate with the mediator and opposing party remotely. Even after COVID becomes an endemic risk, we anticipate that employers will continue to embrace these innovative techniques that are often more cost effective, rather than defaulting to in-person and conventional dispute resolution.
– Nicole Su
Employees Value Flexibility, and For Some Employers, It is Here to Stay
COVID caused a mad dash to remote work for all employers with office-based workforces. While many employers had never considered offering remote work before, they realized quickly that the buy-in was relatively low while the employee satisfaction was high. The transition was not without challenges such as compliance with the Fair Labor Standards Act’s continuous workday rule for nonexempt employees and determining payroll taxes for employees living and working in different cities or states. But the result was largely positive leaving most employers inclined to implement a hybrid approach when employees began returning to their offices. The widespread adoption of remote work for office-based employees has created a trickle-down effect on production-based employees as well. Employers now are considering flexible work schedules, including 9/80 or 4/10 schedules, even for employees who cannot work remotely. These schedules allow employees to work longer hours in exchange for additional, regularly scheduled time off. Currently, many employers find themselves offering some type of flexible scheduling program to keep up with market demand. The bottom line is COVID introduced flexible scheduling that has given employees more control over their workday and, in turn, has led to happier employees, improved production, and increased retention, which, for many, is here to stay.
– Mariah Berry