Broker Check

The Post-COVID-19 Emerging Workforce

May 07, 2020

As attention turns to states reopening, more recommendations on how to deal with the "new normal" are coming out. A webinar presented by surplus lines broker ARC Excess and Surplus and law firm Gordon Rees Scully Mansukhani LLC offered these recommendations to supplement my earlier post.

  • Businesses may have to contract their workforce. Don't target the highest paid or oldest employees, or discriminate against anyone protected by law. Decisions should be based on a combination of seniority and merit.
  • Co-morbid employees, or employees with co-morbid family members, may prefer to continue working from home if that is an option. Decisions on accommodation must be universal. Preferably employees should be allowed to self-select.
  • Safety in the workplace must be foremost. Comply with OSHA requirements and .CDC guidelines. Employers should use concrete job descriptions to guide them. How much PPE will be needed depends on risk, but at minimum masks and hand sanitizers. Employers can reduce risk by staggered shifts, satellite locations, remote work and daily after-hours cleaning.
  • Avoid actions which could lead to whistleblower or retaliation claims.
  • According to the Equal Employment Opportunity Commission (EEOC) employers can test as a business necessity. Tests must be accurate and reliable (as tests are still being developed, look for current reliable information from the CDC or other medical sources). Employers can minimize liability by having a third party administer the tests, either the building owner or a medical professional. Results must be kept confidential.
  • If workers show up sick they should certify they have no symptoms and have been cleared by a medical professional. Workers with symptoms should be sent home. All sick employees must do contact tracing. While tests must be confidential, employers should announce an employee has tested positive; if their identity is revealed or suspected no harassment should be permitted.
  • Remote work may need to continue. Reasonable accommodations should be made based on the Americans With Disabilities Act, Pregnancy Discrimination Act and/or EEOC guidelines. Anxiety about returning to the workplace should be accommodated if possible.
  • Hourly employees may have to balance their work with issues at home, making accurate calculation of hours worked difficult. To avoid wage and hour claims (typically excluded or limited to defense cost in EPLI policies) employers should require certification of hours actually worked. Overtime work should require permission. 
  • Employers may consider monitoring vacation and travel, and require self-isolation after return from "hot spots". Monitoring employees' social media for risky behavior is not recommended, but if co-workers complain their concerns should be addressed.
  • The Families First Coronavirus Response Act provides benefits for employees, and penalties for retaliation. State laws regarding leave and addressing harassment and discrimination must also be complied with.
  • While "super stars" can be rewarded for exceptional work during shutdown, no one should be penalized.
  • The National Labor Relations Act (NLRA) covers "protected concerted activity" by employees about working conditions. Violations are usually not insured.
  • Pay reductions, whether for working at home or otherwise, generally are not allowed and could be challenged. (Since some companies have announced pay cuts, there will be exceptions especially if executives share the pain.)
  • Since cases continue to rise in many states  it is probable that at some point restrictions will be re-imposed.  Under the WARN Act, future layoffs or furloughs may be "reasonably foreseeable"  and require 60 days' prior notice.
  • A spouse or partner may have a co-morbid condition or work at a location such as a hospital with high exposure. In such cases employees should not be penalized for requesting accommodation.
  • Communications with sick employees should be private and sensitive. Failure to do so can lead to claims and damage a firm's reputation.