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COVID-19: Issues for Reopening Physical Workspaces and Returning Employees to the Office

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COVID-19: Issues for Reopening Physical Workspaces and Returning Employees to the Office

Reopening physical workspaces will require both employers and employees to confront new realities and to address both physical and operational changes required by the lingering effects of Covid-19 on the workplace. This program will offer a guideline for assisting both employers and employees to navigate the new post-Covid-19 workplace.

Presenters

Aaron Tandy
Partner
Pathman Lewis

Transcript

Aaron Tandy: Hello, and welcome to our program regarding reopening the physical workspace and returning employees to the office. My name is Aaron Tandy, and I'm going to lead the discussion today about some practical tips for reopening the physical workspace. As you know, the fact of the matter is that we are all transitioning away from remote working and moving back towards a physical return to the office. A number of companies have announced that they expect workers to return by various dates in August, September, and as late as October in New York, and California, Chicago, Atlanta, and even where I am here in Miami, but it's not going to be like turning on a switch. You're not going to say, "All right, yesterday, you were working remotely. Today, you're working from the office. Pretend that COVID never happened. And hey, we're all back, and it's just going to be business as normal."

  If that's what you or your employees expect, or your managers expect, I'm here to disabuse you of that fantasy. The fact of the matter is that over the last year, as employers and employees embraced a different work structure, people got used to some of the benefits and limitations that exist in a remote-oriented workspace. For a lot of employers, the last year has been a bit of a pause. What I mean by that is, they made accommodations to get projects done, to be productive, to service their clients, to scramble to embrace technology that, for a lot of them, they had resisted in years past.

  But for a lot of traditional employers, the COVID experience was not a sum-plus game, or gain. What I mean by that is, many traditional employers who are clients of mine have complained that they are unable to promote or evaluate employees, especially new hires, or incorporate new people into existing teams in a COVID-remote workspace. What that means is that, for many people, their careers have been put on pause, and opportunities for advancement have not occurred. I'll give you one example.

  I know a client that had, prior to COVID, plans to expand their operating stores, I won't name the type of business, by 10. How are they going to do this? They were going to do this by promoting field leaders to office managers. They had been successful in years past in doing that, in taking people who had led field teams on various projects throughout the country, and promoting them to running an office, not always successfully, but for the most part, positively. And they had been successful using this model. Unfortunately, that evaluation and promotion structure did not work in a remote-working environment, because the employer and its management team had trouble evaluating the manner in which team leaders worked directly with their subordinates in a Zoom environment.

  While projects got done, and clients projects were completed, many people expressed their frustration at the management level, that Zoom did not really allow for an evaluation of the management skills that they needed to select an office manager for a new location and provide that person with the tools they needed to succeed. As a result, this particular employer is been chomping at the bit to get people back into the physical workspace, because they have not changed their procedures, but they're facing some resistance from younger, newer employees who had enjoyed the freedom that COVID-related expansion of teleworking and flexibility of hours has created.

  These people, these employees themselves, have been resistant to the encouragement by the employer to return to the physical workspace. In part, the employees have complained that they're concerned they will lose some of the autonomy that they experienced by working remotely and lose some of the flexibility, in terms of when work has to be commenced and completed, by returning to the physical workspace. As a result, this particular employer has set a hard deadline for September 1, and is not agreeable in the first 30 days to allowing anybody to continue to work from home. I've counseled this particular employer that their dictatorial [inaudible 00:07:42] manner of method is not the best procedure for reopening the office in a smooth and positive way. Why is that?

  Well, some of the things that I would suggest employers do, this particular employer hasn't. For example, they really aren't allowing a transition period, that period of time by which employers and employees need to re-embrace the pre-COVID working model. The employer has a plan. Unfortunately, in my view, that plan is simply dusting off their old rules, regulations, and procedures, pre-COVID, and believing they can just open the book and start again. As we're going to discuss this afternoon, that's not, in my view, a plan. A plan should include, not only making physical changes to the workspace, but modifying business practices to incorporate time and cost savings that people have come to expect and utilized during the pandemic.

  For this particular employer, I think some of the things they're doing are correct. They're being extremely communicative with their employees. We'll discuss, during this program, having a communications plan. We'll discuss having an accommodation plan, something this particular employer that I've used as my example hasn't done. And we'll discuss how you can incorporate some of the expectations that we've come to experience during the COVID pandemic into the new normal workspace. One of the things that everybody should be thinking about is that COVID is probably the... Has had the biggest impact on traditional workspaces in the last 25 years.

  Previously, we've had... We moved from telephone. And believe it or not, when I started, we had fax machines, not a lot of computers. And we've moved to computers, we've moved to some semblance of autonomous workspace. I don't know the last time I've actually dictated a letter to an assistant, as opposed to simply typing it myself on a pre-printed, pre-formed electronic letterhead that my assistant then at least checks for accuracy. I'm not the world's best typist. Those changes, businesses were able to accommodate, and were able to accept, because they made things more productive, they reduce costs, and they allowed for greater flexibility and creativity in the workspace, even my not having to take time dictating a letter to my assistant.

  When I started, that's what we learned. We learned to dictate, I did Dictaphone, I learned to dictate live to people, because that's what was done in law firms. What did that do? That meant that for at least the half hour in which I was dictating, the assistant, and I could do nothing else. We couldn't answer the phone, we couldn't respond to emails, not that there were any, and we couldn't do anything else. The advent of actually being able to type into a computer, and being able to send that to word processing, or to my assistant for her to finish freed both of us.

  And businesses accepted those changes, because everybody was. COVID has created the same type of changes that we're going to learn, or need to learn to accept. Now, that's not true for all businesses. Restaurants are still going to work the same way, hotels are still going to work the same way, but for traditional office spaces, there are some things that occurred during the pandemic that can be embraced, or at least incorporated into a modified business plan.

  As we go through this, I want you to remember that the goal of this program is, hopefully, to give you some things to think about to make the transition for yourself, for your colleagues, for management, and for business owners a little more palatable, a little more easy, and a little, hopefully, more structured. But one of the things we're going to need to recognize is that this is a process that needs to be done in stages. There are pre-opening requirements for prepping the physical workspace. There are pre-opening requirements for looking at business practices.

  And finally, there are practices that need to be developed to assess the changes to workplace culture, expectations that will be necessary to make the transition space and time smoother, more productive, and less fraught with frustration on the part of employers and managers, and frustration on the part of employees, who are in some cases concerned that they are going back to the straight jacket that is the traditional office work environment that they have come to avoid in the pandemic timeframe.

  We're going to take this in steps. Step one is to recognize that while COVID has impacted workspace, work expectations, and working culture, certain rules still apply to the physical workspace. The requirement of providing a safe workspace under OSHA, Occupational Safety and Health Act, one of the Occupational Safety Health Administration, will mandate that employers modify their workspaces to address safety issues in ways not previously considered or adopted.

  For example, do you have, what used to be in the office space, a smoking section, a non-smoking section, a vaccinated section, and a non-vaccinated section? I don't think myself that that's probably what people have in mind, or what the CDC has in mind. But unless you as an employer, or as a manager, have made a decision to require that all people returning to the workspace be vaccinated... And some employers have made that choice. The Equal Employment Opportunity Commission has made it clear in their guidance that employers can require vaccination for people to be able to return to the physical workspace.

  Now, I'm not here to give a discussion about vaccination or not vaccination, or the CDC guidelines, or any of that, but any reopening plan needs to address what you do about workers who have chosen not to vaccinate. The EEOC technical guidance has clarified that any vaccination authorized by the FDA is not a medical examination for purposes of the Americans with Disability Act. For those of you who are familiar, the ADA prohibits employers from requiring employees, as a condition of employment, to get a medical examination, or engage in a medical test or a procedure.

  But the EEOC has taken the position that vaccination is not a medical examination, and that employers may condition employment on vaccination status provided employers grant reasonable accommodations to employees who are unable to receive vaccination due to a disability or religious reasons. Again, let me make sure I make that clear. The only two accommodations and employer needs to make on the vaccination front, at least according to the EEOC, I'm not talking local guidance, which you also should consult, is if somebody comes and says that because of a preexisting condition, they are unable, or their doctor has informed them that they're unable to get the vaccination, or for religious reasons.

  I have somebody who I've counseled recently, who because of a severe bronchial condition has been directed by their doctor not to get the vaccination. As a result, we had to apply to her employer, who had indicated that starting at the end of July, people would be returning to the physical workspace, and request an accommodation, which was granted. Because of that, the employer was not willing to grant an accommodation to allow the person, who was a manager, to work from home.

  But they did indicate that there would be an accommodation in the fact that anybody coming into her office would need to be masked, anybody coming into her office could only stay for five minutes or less, and that at least one day a week, the employee, the manager could work from home. In that way, the employer believed they were accommodating the unvaccinated status of the employee, my client, while getting their workspace back to some semblance of normal. In addition, we arranged that for meetings, team meetings that were in excess of 10 people, my client would be able to attend those still by Zoom, even if she did so from her office, so that people could come during the meeting and ask her specific questions.

  What you do in your break spaces to provide a safe workspace, what you do in your reception areas to provide safe workspaces, those are all configurations that are individual to the office plate and office space that you're all dealing with. But step one of any reopening plan is to realize that some of the ways that workspaces have been transformed because of COVID; plastic shields, excessive sanitation stations, we've all seen the hand wipes, the hand gel that are placed in various locations in the office space, moving people out of common areas, and limiting the number of people in break rooms. All of those things, all of those safety issues will still exist when we return to the workspace.

  For some offices, that means keeping the traffic patterns that people put down on the floor, or on the walls to direct people, or egress and exit into the workspace, so that people were not congregating. For employees who seem resistant to returning to the workspace, communication, as we said before, will be key, because employers have a right to set workplace culture and accommodation analysis under OSHA, and under EEOC guidelines. And those things have not changed in a post-COVID or a current COVID environment. That means that allowing people to understand what they're going to confront when they arrive at the office space will be helpful.

  It's why I said before, it may be good to have a transition time period. I know some employers who have a modified schedule, people in the office for a couple of days, out of the office, so that there's coverage for all five business days, and sometimes, Saturdays. What they're planning to do, at least to employers, I know, is to shake up the teams. It's been the same group of employees for the last 40 weeks. Employee A, B, C, D, E, F come in certain days as a team, and employees H, I, J, K, L come in on different days. Part of that is to make sure that people aren't necessarily overlapping, but also to keep consistency.

  In transitioning back for everybody to be at the office, some employers are mixing up teams at the approach to opening day. Sounds like baseball, but to opening day, so that people can reconnect and get more used to seeing faces they haven't seen before in the office space. Other employers are taking the approach that they're going to bring everybody back for two or three days in a soft opening two weeks before their deadline or opening day as a means of getting people used to being back physically all together in the workspace.

  It doesn't matter what transition, what pre-opening transition you adopt, but I recommend adopting one. Because we've all gotten used to certain sounds and quirks of a COVID-impacted workspace, we don't recognize certain voices that we used to. We don't tune certain things out because we're not used to it. We're not used to having to fight for the coffee machine, or the coffee pot, because there haven't been that many people in the office when we're in the office. All of those small details, and recognizing those details will help in a transition space.

  Next, for step two, in the reopening process, you have to set both the physical layout of the office, decide how you're going to allow customers to access the office, and decide how you're going to get people in and out for breaks, lunch, and departure. All of this sounds somewhat mundane, but it is important, if you are going to have an easy transition, that you set expectations, that you monitor your plans to make changes, and above all, as we said, communicate to the people who have to effectuate your plan and abide by your transition plan.

  A good reopening plan provides information and directions to employees about how they can access the office, how they can allow people to enter the office, and where they can congregate. A good reopening plan also identifies where and when people need to continue to wear masks, if at all, and sets up a COVID coordinator. For those people who have been operating a physical office, you know that OSHA required a selection and identification of a COVID coordinator. That person, under the COVID rules, was intended to obtain health information, be a point person for information about COVID, and to report to OSHA if there was a COVID incursion, or occurrence in the workplace that required parties to make a record. Under a transition to a physical workspace, OSHA has still recommended that there be a COVID coordinator. That's the person who will take questions and provide communications to employees about modified office procedures, when and where teleworking may be allowed, and should be the first gatekeeper for requests for accommodation for required vaccinations, or to address health issues.

  I recognize that some of this seems self-evident, but this is not something you want to do on the fly. Having a designated coordinator, whether it's the office manager, or an executive is important. Communicating who that person is, and making sure that person has the most up-to-date plan and guidance is also key. The thing that you want to avoid in a reopening plan is confusion, or multiple points of contact, where the opportunity to have disjointed responses is heightened. The fact of the matter is that modifying business practices to incorporate certain COVID lessons is key, but without a coordinator, there is the chance of chaos.

  One of the things that you should do in step two is to identify whether there were time and cost savings, performance undertakings experienced during that pandemic that could be available for use in reopening the office. For example, you may find that it is not necessary for everyone to attend the same office briefings or staff meetings in person, partly, to avoid clustering, but partly, for the convenience of allowing people to participate in other locations. The fact of the matter is that many businesses will find themselves using a Zoom-type platform going forward for the time savings that can be achieved with this technology.

  I realize that for some offices, the cost of obtaining a license for some of these platforms could be cost-prohibitive, but I would remind people that keeping an engaged workforce is of preeminence, and in the long run, provides cost savings multiple times over. As a result, allowing people some flexibility to not be tethered to the office, or to particular meetings in person may be a good step towards returning them to a workspace and an environment that existed pre-COVID. Recall that one of the biggest challenges to returning people to the workplace that you will probably have to overcome is the reluctance of your workforce to give up some of the freedom that exists in a remote workplace.

  For example, pre-COVID, I was supposed to be in my office by 9:30 in the morning. What that meant was that I was unable to go to the gym, unless I went very early because of the need to shower, change, beat the traffic. During COVID, I was able to go to the gym more regularly because I only needed to be home in my apartment, logged on to my computer by 9:30. And that meant that I didn't have to worry about being shaved and showered, but I could commence work in whatever state I wanted to, so long as I didn't have a court hearing.

  And as you know, many people put on a suit, so they'd show up on the screen, and wore shorts below the camera, as it were. I know some judges who did that. That freedom is going to disappear when I go back to work full-time at a physical office in which office hours and the commencement of the day means that I have to include 35 or so minutes of travel time into the office. For some people, losing that flexibility will be a major consternation to source of annoyance that you will have to address. Some ways to do that may be to start the workday later as part of your transition process, and gradually move the time clock backwards over time as people get more comfortable working. One thing that you may have to address is the need for people to take more breaks.

  A study showed that most people are productive when working from home. Obviously, not everybody is productive working from home, but a number of people are productive working from home. But what this study found was, many people took micro breaks, but were still able to complete their work timely. Micro breaks, getting up, stretching, walking around, where you don't have to be worried about people not seeing you in your office are things that people adapted to by working remotely. Those things are going to go away if you have an office policy that only allows people to, say, take a coffee break during a particular window slot, or have lunch during a particular time, because most traditional offices are used to regimenting when and where people work. As you think about your reopening plan, think about determining whether some of the teleworking perks can be incorporated into the physical workspace. Also, you need to evaluate whether additional overhead, insurance charges, medical costs are needed to accommodate COVID-19-inspired restrictions, requirements, and modifications.

  Remember, OSHA says it's the employers job to provide a safe workspace, not for the majority of the workforce, but for all of the workforce. That means if you have people who aren't vaccinated, or you have people who are susceptible to illness, you may need to take extra steps. You may need to pay for certain services, additional cleanings that are now coming to be expected in order to provide a safe workspace. Those extra costs, extra procedures need to be factored into your return-to-work transition plan. You also need to make sure that, as you are looking through your workplace expectations, to determine whether or not those should be modified.

  Remember, I started off by saying, I know a number of employers who are anxious to get back to the workplace because the means by which they promote and do performance reviews hinges on people being physically present in the workspace. For my particular client, I don't know that I'm going to get them to change their mind, but for your own practices and procedures, you should do an assessment, pre-opening, about whether or not certain of the programs that you've taken for granted, whether they be work-life balance programs, whether they be perks that you provide to your employees, whether it be pizzas Fridays, or some businesses that have a modified Friday happy hour, whether some of these workplace programs designed to create camaraderie, and a workplace environment and culture should be modified to address some of the stresses and adaptions that have been made for COVID-19.

  One of the things that you need to remember as you're designing these programs, or modifying programs is that not everyone's COVID-19 experience was the same. Many people suffered anxiety. Some families lost people. Other people had difficulty making the transition. And so, for the last year, we had been dealing with a fractured workforce, and a fractured work experience. One of the things that you need to think about, long-term, to allow for a smooth transition is how to create a cohesive experience in a post-fractured workplace.

  One of those can be done by pre-opening planning, but the other needs to be done during the opening phase. As part of your transition plan for reopening the office, I recommend that you create a timeline for reassessing where your office space is six months after you've opened your doors and had people back. For some larger businesses, it's probably recommended to do this three months in. When you do it, look for the things that are working, look for the things that aren't working the way you expected them to work, and look for the things that you can change by listening to suggestions from your workforce.

  One of the things that it's imperative to recognize is that we are not going to go back to a pre-COVID work experience. We're going to have to develop a new normal. If you've been a guest at a hotel or a restaurant, you know this to be true. While it may seem similar to a prior experience, you can see how COVID has impacted those businesses' operations. There is plexiglass when you check into a hotel. Room service is not available. There really isn't much in the way of housekeeping. And there are several sanitary stations throughout a hotel.

  Those types of programs are going to have to be created for your traditional office space. Your receptionist area may be narrower, because there'll be a barrier between your receptionist and the people coming into your office space. You might decide that most initial business meetings and consultations are going to be done on a remote platform. You have to decide whether or not, once you begin your operations, if things are working, and measure the way your office staff approaches being back in the office.

  One of the things that you're going to have to rely on is to have supervisors with more knowledge about occupational safety and health procedures than we've had in the past. I know that most small businesses never worried about OSHA, but now, you're going to have to. It's not about a worker's comp claim, that somebody was injured at the business, it's about making sure that the business is safe. Key to all of this is to be consistent in the application of the policies you select. In our remaining time, I want to talk to you about just that.

  Transitioning back to the office space will create positive opportunities, but also, if handled incorrectly, expose your workplaces to claims of discrimination and bias. For example, requiring certain people to wear masks and other people to wear masks may have a basis in CDC requirements, but those applications must be handled consistently. Allowing certain people not to wear masks, while requiring others to come masked into the office may create a disjointed workforce, and create questions about how people are being treated. If you're going to require masks, my recommendation is you require masks for everyone, that as part of the CDC guidance in recent days, that even vaccinated people should wear masks as a means of curtailing variants. You have a legitimate basis for requiring full compliance for masks, wearing in the office or in various parts of the office space.

  Less clear are the issues regarding teleworking. For example, if you allow a manager to telework because you don't want to lose that person to another company, who's offering them that perk, you still have to deal with the fact that you're not going to allow everyone else in the office to telework. Communication with people is key, because most people, when faced with what appears, at first blush, to be inconsistent treatment, tend to ascribe discriminatory motive to employers, or preferential treatment to colleagues based on criteria or characteristics which are not consistent with neutral application of business principle.

  Unpacking that, it sounds like a lawyer's answer, I realize. What I mean by this is that most people who are denied an opportunity given to co-workers tend to ascribe an ill motive to employers as the reason that they did not join in that perk. Claims of discrimination, whether it be based on race, sex, sexual orientation, age, or a whole host of other intangibles can complicate the transition back to the workspace. If you tell people that everyone is required to return to the office, as most major New York banks have done, it would be inconsistent to allow the chief lending officer, or the chief loan officer to continue to work remotely. Not only does it send a bad message of hierarchy, which most businesses are trying to avoid, but it can create a unlevel playing field at a time when most businesses who are returning to work in a physical environment are trying to encourage a cohesive work experience.

  It's up to you in planning your transition program to not only set policy, but anticipate challenges to that policy, or requests to modify that policy, and how you're going to address those requests, and how you are going to explain your decisions, not only to the employee requesting the accommodation, but also to the rest of their colleagues. While it's true that the CDC, the EEOC, and OSHA all provide for employers to make accommodations under the ADA, and for larger employers to make use of Family Medical Leave Act time off to allow for longer lead time and transition time, most of your employees will not qualify for an accommodation. Most of your employees will not qualify for you to allow them to continue to telework.

  The fact of the matter is that employers have a right to set the terms and conditions of employment. They can determine where people are going to be physically located, what tools are going to be available, and what policies people need to follow. But even as you say that, recall that businesses make accommodations all the time. Even my office, which tends to require people to come in at 9:30, the fact that somebody comes in at 10:00, or 10:30 to avoid traffic in a pre-COVID world was not looked at as scams, because the person was required to be productive, complete projects timely, to respond to clients, and to keep up their hours. As long as that happened, whether they came in at 9:30, or 10:30, it did not cause great consternation, other than to my office manager, who might have been expecting coverage.

  However, in a post-COVID world, if an employer decides to dock somebody for being late, that policy needs to go through the entire workforce. It can't be selectively enforced. So it is with COVID transition policies. Allowing somebody who has a good, legitimate reason to ask to work from home for a couple of days a week, or maybe a couple of days a month may be good, may be beneficial to keeping that employee engaged, but allowing that accommodation may require you to accommodate somebody else, even if you didn't want to, to avoid a discrimination charge.

  For example, if I have an employee who is caring for a sick relative, technically, under the ADA, I'm not required to provide them with an accommodation. And depending on who that relative is, there may not be family medical leave available. I may do so because I know that... I'm making this up, but this relative is their aunt, who raised them as a child, and is now very ill, and this employee works from home, so she's available to her aunt to provide medication and services. I then have another employee who has children who are school age. The person is concerned about returning their children to a physical, in-class environment, and so wants to homeschool them, and has asked for the ability to work from home, so they can monitor their children's homeschooling lessons.

  Now, we're not in the business of making social choices about, whose needs are more important? The need of a parent to educate their children? The need of a niece to care for the aunt who raised her or him? Allowing one accommodation because of the COVID experience, but not allowing the other may create dissatisfaction and confusion in the workplace, but may also lead to a claim of discrimination and disparate treatment. It's for that reason that having a coordinator who has been briefed, and having conversations with employees and supervisors about the transition experience, goals, and aspirations will be key to creating a more positive, long-lasting transition experience back to reopening physical workspaces, and encouraging the return of employees to the office.

  I thank you for your time today. Again, my name is Aaron Tandy. I hope you've taken some of the objectives that we've had, and be able to put them into practice to recognize the need to modify business practices to address COVID-19 effects, recognize the need to modify the physical workspace to address COVID-19 effects, recognize the need to modify, or consider modifying the manner in which employees perform work to address COVID-19 effects. And as always, communicate the plans and goals with your workforce. I wish you the best of luck. I wish you a safe and easy return to the office. Thank you.


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