Thank you all for joining this Quimbee presentation called Global Return to Work Post Pandemic. How a multinational employer can reintegrate employees into employer work sites worldwide. I'm Don Dowling. I'll give you a little background, just so you have the context of where I'm coming from here. I'm a shareholder at Littler which is the biggest worldwide employment law boutique law firm. And my practice personally is cross-border or international labor and employment law. Advising multinational companies, usually those headquartered in the US. And today, I think I'll probably be assuming for most of our comments that the multinational is headquartered in the US. Although the comments we'll say today would apply to a multinational headquartered in Japan or Europe or Australia, anywhere else. But then I advise on employment matters that affect the multinational worldwide and their operations in other countries. Usually multiple countries at the same time. So I'm explaining that as background, because today, we're talking about a specific context of that, which would be a multinational company whose headquarters is saying, "Hey, we've been getting through this pandemic since March of 2020, but now, we're emerging, it's maybe switching to an endemic instead of a pandemic, but we're trying to get life back to some semblance of what it was pre-pandemic. And let's reintegrate our employees into our work sites worldwide. As opposed to a local company in Argentina or a local company in Mexico or Belgium, or pick a country, you might have local companies that wanna bring their workers back in just one country. And that would be a discussion unto itself. If it were Mexico, it would be under Mexican law or Belgium would be under Belgium law. But today, we're talking about project managing a multinational that wants to reintegrate employees across its work sites worldwide. And worldwide depends on the footprint of the company. It might just be two or three or four or five countries, or it might be dozens of countries. So with that, here's kind of a roadmap or a table of contents for what I want to address today. One is gonna be, we'll call it part A is global post pandemic return to work initiatives, the context and the challenge. And then part B, and the next part is the legal risk worldwide around post pandemic return to work initiatives. And then the final part C which will be very short but important, 'cause we're leading up to it is multinational strategies for a global post pandemic return to work initiative. Now first, let me take a a minute to explain what I mean by a return to work initiative. I mean a company, a multinational again, 'cause we already talked about that. That is asking its employees worldwide across operations in more than one country, we talked about that. To come back to the office or the work site more than they used to. So I mean that, I guess sounds obvious. But what that leaves out would be a couple things. One would be the scenario of a company that's stopping off office work entirely and is saying we're global work from home. We're not gonna have anybody come to any offices anymore. That sounds pretty extreme. But there were media reports that Airbnb might be an example of a company that announced something close to that. So if it a company announcing we're not gonna have anybody go back to any work site, they would not have a post pandemic return to work initiative because they would be having a post pandemic don't return to work permanent work from home initiative. And frankly, we'll probably mention that scenario a couple times, but I assume that's a rare scenario and it's more usual that companies are pushing to get people back to work sites than they were before. Then I guess another example of a company that might be a multinational, but would not have a return to work initiative would be one that is inherently all work site-based and never had people working from home. I guess an example, that would be a restaurant. Obviously, if it's a big enough restaurant chain, there'd be management and the management people might have worked from home during the pandemic, but let's take a small restaurant where everybody has to go to the restaurant to work. There's no work from home because you gotta be sitting in the restaurant to cook the food and serve the food. They would not have a return to work initiative because everybody's been at work even either they closed down during the pandemic or they operated somehow during the pandemic with people at the work site, but people were always going to the work site. So you're not asking people who have been working from home for maybe two years to come in. So we're putting those two extremes aside and looking at everybody else in the middle who is trying to get people to return back to work. But now, let me just disclose that one thing I probably won't be able to go in today 'cause it's not really my place. I'm a lawyer talking about the legal issues around a post-pandemic return to work initiative. So by the initiative, I mean your company is gonna decide for business reasons that grow out of your business needs to what extent you want people to return back to the workplace at least some of the time. You might want everybody to come back all the time, no more work from home. That's over, that was the pandemic, but now, everybody's coming back. That might be one model. Another might be let's go to the two or three day week model. That one's emerging as kind of a popular option when companies are finding out that it's hard to get people to come back to the workplace full time. But I guess my point here is that I'm not really in much of a position to be an HR consultant advising on what your global return to work initiative should be. Because first of all, every company's different and some companies have very different needs from others. Some everybody works in an office environment and work from home is not that inconvenient. Others, the office or coming into the work site is very important and maybe only certain people can work from home, others can't. So yeah, that's another issue. You might have certain jobs that have to come in full-time and others that don't, but another employer might not have that. All the jobs might be more or less similarly situated when it comes to return to work. So again, my point is that I'm assuming that your company can look at HR and your own particular business needs to come up with, hey, here's what we'd like to do to get people back to work to some degree, whether it's five days a week or two days or three days, and whether it's all the people or just some of the people with certain job functions or whatever, I'm assuming that you're gonna think of a return to work approach that works for you and your approach that you decide might not be the best approach for some other company. Especially if the other companies in some completely different industry. So therefore, today, I'm not in much position to say what you should be doing as far as whether two to three days a week works, or whether you should go job function by job function and decide how many days in the workplace you have to work depending on the job function or whatever, all those are specific to you. So I'm assuming that you're gonna be able to come up with some kind of return to work initiative that you prefer to do, but then you'd say, okay, that's what we prefer to do, but we're a multinational company. We wanna do this worldwide. Can we do it? What are the legal issues and the legal risks worldwide around doing the particular return to work initiative that we want to do. So with that, I said, we're gonna break this into part A, part B and part C. Although part C might be a bit shorter. But part A is global post-pandemic return to work initiatives, the context and the challenge. So in the next part, what I'm calling part B, we'll go through six specific legal areas that are gonna affect your return to work initiative. But in this part A, before we even get to the specific areas of law that affect your return to work initiative, I wanna unpack the context and the challenge of getting people back into the work site worldwide. First, I just wanna state some assumptions behind these, an employer back to the work site initiative. One is I assume that your operate, remember, there's about 190 or even 200 countries worldwide in the United Nations. The membership is close to 200. So we're talking worldwide right now. And obviously, we have to speak in generalizations to some extent, because we can't address the specific law of every country on earth. I'm assuming that when you're setting out to launch your global return to work initiative, that local law allows you to get your employees back to the work site, consistent with what you want to get them to do in each country where you operate. And I think at this point in the pandemic, that assumption is a pretty fair assumption. I don't think there are too many countries on earth left. And when I say left, we're talking in mid 2022, I would've had a very different point to make if we were talking back in 2020 or 2021, but by mid 2022, most countries are allowing employers to have people work at their work site, whether it's an office or a factory or a restaurant or hospital or whatever. But you need to check if you happen to be in some kind of country or context where the local law absolutely forbids entering a building or having people congregate in a building that will include your employees. Then obviously, you have to comply with that local law. But I'm assuming there that local law does allow return to the work site. And I think by mid 2022 and going forward, that that assumption is a pretty fair assumption, but you need to check that up, obviously. Next is, I'm assuming that as an employer, now remember, you're a global multinational. I'm assuming that you're going to comply with any lingering local, and by local, we're talking country by country and the countries you're in. Any lingering local pandemic-related requirements like masking. For example, if you happen to be in a country that says people who enter a building or enter a workplace, must wear a mask, again, those laws are dropping away by mid 2022. That would've been very different if we were talking in 2020 or 2021. But if you're in a country that requires wearing a mask, for example, then obviously, I assume that in your global return to work initiative, at least as you apply it in that particular country, you're gonna comply with the law. So you're gonna require everybody to wear a mask if the law requires. I guess an an example of that would be airplanes. Up until recently or still in Europe, airplanes have been one of the last workplace context. And obviously, when I say workplace, I'm talking about the flight attendants and the crew on the airplane, but in well into the year 2022, airplanes in many countries required wearing masks. So obviously, if you're an airline with a global return to work initiative, I'm assuming that you're gonna comply with any masking role that applies to your airplanes, your flight crews and your routes. And now, in making that point, I talked more about masking as an example. A more obvious example might have been vaccines. What about laws that require vaccines? If you have to be vaccinated, then you're gonna require, if the local law says anybody who enters this building or who goes back to a physical brick and mortar work site must be vaccinated, then I'm assuming you're complying with that law. But I'm pointing out that worldwide laws that actually require employers to impose vaccine requirements or to police vaccine requirements, and by policing, I mean, checking that people got their vaccine were actually almost nonexistent. There's very few countries that pass laws that require employers to check vaccine status because when the vaccine came out, you got so much data privacy issues. And so many other issues that the countries started backing down, including the US, I think in that case. But still, if you happen to be operating in a country that requires employers to check vaccine status or requires employers to bar from their workplace non-vaccinated employees, then I'm assuming you're gonna comply with that law. But I'm pointing out that when you actually look at the local laws of the countries where you operate, I'm predicting there's gonna be very few, if any, countries that have a law that requires you to check vaccine status or to bar the non-vaccinated. Now next, this is the biggest assumption and to American headquartered employers, I need to emphasize this very clearly because employers in other countries kinda get the point I'm about to make, which I'm gonna call it having an articulated safety rationale. American employers come from an employment at will environment. And we Americans employers are used to just having a rule and saying, hey, that's our rule. If you don't like it, obviously, we're a little more diplomatic about this, but American employers don't necessarily have a legal reason or legal compulsion to explain a rational reason for their work rules. So if you're gonna impose a dress code, you impose a dress code. You don't have to come out and explain to the employees why you impose the dress code. You might explain why for HR reasons so people buy into it more, but that's more of an HR motivator rather than a legal one. In other countries however, outside of US, outside employment at will, there can be many situations where an employer is basically prohibited from imposing an unreasonable rule. Or at least from disciplining people for violating an unreasonable rule. For example, if in the US, an employer, just for an arbitrary, I'm making a silly example here, but for an arbitrary, crazy reason said, now let's assume it's a US employer in Chicago or St. Louis, or Kansas City says, "Everybody's gotta wear yellow socks to work and if we catch anybody wearing any socks that are any color other than yellow, we're gonna fire them." Theoretically, that's perfectly legal in the US. In another country, that would not be legal. If a German employer tried that yellow socks rule and somebody showed up with brown socks one day and got fired, that would not be good cause. The employer would say, "Yes, it's good cause because we published a work rule. We said, this is the rule and the employees knew what the rule was. And this guy violated it by wearing brown socks on a Tuesday he came to work in brown socks." You're still not gonna get that upheld in a German labor court because the rule is unreasonable and is silly. So you effectively, in many countries, I'm generalizing, but effectively in many countries outside employment at will, you often can find yourself in a position to have to defend or justify a work rule. And if you openly admit it's an arbitrary, silly work rule, you're gonna lose the case. Especially if you're disciplining someone. Remember, anytime we talk today about rules, you have to think of this scenario where somebody violates the rule and then you impose discipline. If you're implementing work rules and letting people violating them and not disciplining people for it, then they're not rules at all. So the rubber hits the road when we're talking about work rules, when we talk about discipline. And in the context of much of what we talk about today, today, we're talking about a global return to the workplace initiative for a multinational employer. When an employer says, "I want workers to come in on Tuesday and Thursday or two days a week, or I want them to come back all the time." Whatever you come up with as your return to the work site initiative, if it's global and outside the US, outside employment at will, I strongly suggest, I'm obviously urging pretty urgently that you articulate a safety rationale for your return to the work site initiative and for the current workplace configuration safety protocols. In other words, remember, we already took off the table of the scenario of companies that aren't returning to the workplace and are letting everybody work from home permanently and are doing away with their physical brick and mortar work sites. So if you still have a brick and mortar work site, and if you're transitioning to some kind of rule where you're getting people that come back to the workplace, you need to articulate a safety rational wise. In other words, assume you're gonna get one very safety conscious, very COVID diverse person, maybe somebody with long COVID or somebody who thinks they're immune compromised or something. Who's gonna say, "Hey, that's unsafe. You're telling us we have to come back to the workplace, but you're telling us we have to work three days a week in the workplace, but I've been working from home for two years and if you force me to come back, I think you're jeopardizing my health and you're gonna violate health and safety laws." Etc. etc. etc. You need to be able to say, "No, no, no, we thought of this. We consulted with industrial health and safety experts or otherwise, we thought through our rule and it it's reasonable. And it complies with health and safety laws." We'll get into the health and safety law stuff. "And we need to impose it." A part of it is to say, yes, what we're requiring is safe. That's gonna be part of your articulated safety rational, but then there's also gonna be a business component to it to say, "Look, we can't operate for the next five years with nobody ever coming into work and everybody working at home. We have business reasons and we have meetings, we have clients, we have other business operations where we physically need people in the workplace. That's part of our business. Period. We need it. Now, we can't be unsafe. We're not gonna ask people to do anything that's unsafe. But what we're asking here is safe because of." Whatever your explanation is. And maybe part of it is you're wearing mask or you're certainly probably gonna allow people to wear mask if they want. Maybe you're gonna do extra cleanings. Maybe you're gonna separate carols. And it used to be that people were squeezed in together in your office. But now, you're getting more space and giving everybody six feet between people. Whatever it is, you need to have an articulated safety rationale. So when people push back on your return to the work site initiative in other countries outside the US, you're gonna be able to say, "Hey, you might be complaining about our rule, but our rule is reasonable. And you're the unreasonable one to be complaining. You don't understand. Our rule is well thought out, is business justified and makes sense from a health and safety rationale." So whatever your return to workplace initiative, you really should articulate that safety rationale. I apologize for spending five minutes emphasizing this, but again, I find that American clients don't think this way and I'm generalizing, but they often think, Hey, this is gonna be our role and let's go forward, blah, blah, blah. And you need to have articulate the safety rationale in a sentence or two or three or a paragraph. But write down that sentence and have it in email or something. And that's gonna be your global rationale for why you're doing either. Everybody has to return to work all the time or three days a week, or everybody accept those who have a doctor's excuse saying they're immunocompromised. Whatever your rule is, you have have an articulated safety rationale for it. Now I wanna go into, we're still talking about just the general context of a multinational, launching a return to the workplace physical workplace initiative. And I wanted to set out some scenarios 'cause different employers are in different industries have different scenarios and the different scenarios have different ramifications and raise different issues. One is site anchored employers versus office employers that can allow telecommuting. Again, pick a restaurant is one example, or pick an insurance. I'm guessing I don't know enough about how insurance offices work, but let's assume an insurance office has people who work on the insurance policies, but they can work remotely from home on those policies. So a restaurant would be a site anchored employer. An insurance office might be an example of an office employer that can allow telecommute. Next, employees originally hired as telecommuters versus employees originally hired to work on site. I'll mention later that that some good news, a ray of sunshine here is that employers around the world under employment law around the world have pretty good leverage to require employees to come back to the physical workplace. If those employees who you're requiring to go back were hired to work on site. I don't wanna get ahead of myself. So I'm just gonna tell you that I'll talk about the legal reason why. Good news is, yeah, you can tell people if you hired them to work in an office, it's 624 Elm Street, and that was the job. And 624 Elm Street is mentioned in their employment agreement as the place of work, you have a lot of legal leverage, whether we're talking about Germany or France or Argentina or Mexico, whatever, to get that person to come back to the work site once it's safe obviously. However, obviously, you don't have almost any leverage to get someone to report to a workplace, at least outside the US now. Outside the US. You have very little, if any, leverage to force someone to report to a workplace. If you hired that person expressly as to telecommute for a telecommuting job and in their onboarding documentation that says they're gonna telecommute, then you come to them and tap them on the shoulder and say, "Hey, we want you to show up five days a week in an office." They're gonna say, "Hey, I didn't sign up for that. That's not part of my employment grade." So that's a big difference. Next is returning now telecommuting former site workers to the work site versus forcing former site workers to be permanent telecommuters. What I mean is, for this purpose, I'm talking about people who you had hired before the pandemic. Obviously the pandemic's been so darn long that lots of employees were hired during the pandemic. But as to those who used to work on site, returning them to the site is one thing. Whereas it's different to force those people who used to work on site to be permanent telecommuters. A lot of them like that. But that raises a different context. If somebody was hired to work at the office, and now you're saying, "You know what? We're not gonna rent that office anymore. You gotta work from home. You must be a permanent telecommuter." I've seen in foreign countries, France, Germany, for example, sometimes employees don't like that. They say, "Hey, Paris, real estate's expensive. I have three kids and we live in a tiny apartment in downtown Paris. You can't force me to work outta my apartment. I was hired to work in your office and you're changing my job conditions by forcing me to give my apartment to you as a workplace." And another contextual difference here is transitioning telecommuting employees hired during the pandemic into what had been onsite jobs into maintaining telecommuting employees hired during the pandemic expressly as forever telecommuters. Again, that means if somebody was hired during the pandemic and they were telecommuting from day one, your legal leverage to get them back to the office is gonna depend a lot on how you onboarded them and what their employment agreement says. Maybe you basically hired them as a permanent telecommuter and then you don't have much leverage to get them back to the office versus maybe you told them, "Hey, your place of work is our office at 346 Elm Street. However, at the beginning of your job and until further notice, you have to work from home because of the pandemic." Those are different contexts and scenarios. Now let me get to something. I'm still mentioning context. Let me mention special employee categories relevant to your back to the work site initiative. So far we've been talking about, let's say you operate in 12 countries and you've got an average of 20 or 30 employees per country. And we're talking about a global return to the work site initiative. So we're talking about getting all your employees in each of your 12 countries back to the office. Maybe five days a week, maybe two or three days, whatever. That discussion up to now though assumes all the employees are similarly situated. When it comes to, I don't wanna be provocative, but I'll say forcing. When it comes to forcing people to come back to the office. And by the way, I should say this now that when we talk about employer back to the work site initiative, I'm assuming that you're trying to force people back to the office at least to some extent. Maybe not all your people, maybe only certain roles, maybe not force them back five days a week, but only two or three days a week. But I'm assuming at some point, you guys, your company will decide to require people to come back to work. Because if you don't, then you don't really have much of a back to the work site initiative. All you're doing is making it optional worldwide, and your company might wanna do this. It might be a good idea for you to say, "We're gonna keep our offices open and we're gonna encourage people to come back, but we're gonna let everybody decide. And nobody has to go back to work and they can be permanent telecommuters for the rest of their time. Working for us. We're never gonna force them to come back ever again ever. But we will leave the office open if they wanna come back. And in fact, we'll encourage them and we'll have parties to try to lure them back." If that's your return to the work site initiative, you're in very good shape legally, 'cause there's not too much legal. Obviously, your work site has to be comply with health and safety rules. But if you're giving everybody the option to come back, there's very little legal rules around your initiative because nobody's being forced to do anything . And again, if you wanna make it optional that way, that's fine, I'm not trying to suggest that that's not a good return to the work site approach for a company that's comfortable with that approach. What I'm saying that for purposes of our talk today, I'm assuming on most of these slides, in most of the situations, that there'll be some component where you'll try to force people back to work. Maybe not now, maybe it'll be next year or the year after, but I'm assuming at some point, you're not gonna let everybody work remotely who wants to work remotely forever and ever, and never come back. If you do do that, frankly, legally, it's much easier, but I'm assuming you don't wanna do that. But the other side of that coin is therefore at some level, you're forcing people to come back. Maybe you won't do it for a year or two, and maybe you'll only ask them to come back two or three days a week, but you'll be forcing frankly, forcing them to, I said, ask colloquially. You'd be forcing them to come back two or three days a week. If you give them the option, then they don't have to come back. And then you're not requiring them. So again, we're talking about scenarios where an employer has a back to the work site initiative that at some level or other is requiring people to come back to the physical work site. But that assumes everybody's equal. There will be, or you are very likely to have special employee categories and you might have to make exceptions for certain people who fall into these categories. And those could include the bullet points on here. People who are known or suspected not to be vaccinated. You might say, everybody's gotta come back, but we don't want the non-vaccinated coming back. An employee back at the site discovered to have COVID. You might say everybody's gotta come back. But the minute Stan on the third floor is revealed to have COVID, you certainly don't want Stan to come back until further notice until he tests negative, at least. Another scenario might be Susie on the fifth floor. Said that her husband or people in her home got COVID. She said, "I don't have it yet." But you might have discovered that a given employee has been COVID exposed and you might apply different rules or standards to that person. You might have an employee who claims a special personal health reason for events coming to work. And so you might say, look, everybody's gotta come back to the workplace three days a week, except if you have a doctor's notice or you you're otherwise comfortable that a specific employee has a specific personal health situation that would justify making an exemption for that person. That business travelers, just in that people traveling on trips or frankly international personal travelers. I doubt you're gonna be concerned about domestic personal travelers, but people who travel internationally, either for business or for personal reasons on vacation. And of course, if you're worried that somebody going to China, let's say. Right now, China seems to be having more of a crunch of COVID than other countries. If you're worried about somebody going to China and then coming straight back and showing up in your workplace, remember there's no conceptual difference between business travel and personal travel. So you gotta ask people where they're going on vacation because a person who goes to China on vacation is just as likely to be exposed to go. But then someone who goes on a business travel. Next is for the rest of this program, I'm gonna talk about four elements that employers return to work initiative should address. And then I'm gonna look at them in three contexts. What these four elements are. Then we're gonna look at the six categories of legal rules I mentioned already. And then a quick one slide at the end on addressing a multinational global return to work initiative in the global context. Applying the policy across different countries at the same. So now remember, I've defined, I think pretty thoroughly what I mean by multinational employers return to work initiative. And I said, different employers will have very different ones and I'm not here to suggest what yours should be, because what yours should be is more specific to your business operations and your decision making. And I'm not in a position to pontificate what that should be. And different companies will have different return to work initiative. But your return to work initiative should address four things. And I'm gonna keep repeating these four things as we go, 'cause these are the things we're road testing in our session today. One is decide on a post-pandemic return to work model. I'm assuming you're a multinational, it'll be a global model. But let's say, you're saying by January 1st of 2023, everybody's gotta be back at work full time or by August 1st everybody's gotta start coming back at least two days a week. Or whatever your return to work it is, that's your global model post pandemic. Next, impose a new set of protective measures in the workplace or relax, but not eliminate COVID era protective measures in the workplace. What I mean by that is remember, we've got two years of COVID and you probably had some people going into your office. You might have protective measures in the workplace. For example, you may have separated carols that were more squeezed tightly together. Now they're six feet apart. Or you might have upgraded your janitorial services and you do special cleanings, or you might have protocols in place for if someone gets sick or maybe temperature testing or people reporting. If they've been exposed to COVID, if they've gotten COVID whatever, you probably have those in place already anyway, because the pandemic was worse in the last two years, but now, the COVID's not over. We're not completely outta the woods yet. So you probably don't wanna eliminate all those protocols, but you wanna adjust them as time goes on. So either impose new protective, I'm calling those protocols protective measures, whatever they are for you. Either impose new protective measures or relaxed, tougher, protective measures that maybe were you put in place a year ago and now they're too tough, but come up with some set of protective measures in the workplace. And again, those are gonna play into your articulated safety rational. Someone says, "You're forcing us to come back to the workplace and it's unsafe. COVID has not gone away. It's an endemic, not a pandemic, but it's still a danger." And then you're gonna say, "Okay, yes, but we have these protective measures in the workplace. And our requirement that you come back to work is reasonable because we have now separated the desk by six feet, or we're requiring everyone to wear a mask." Or whatever. But you were gonna wanna impose those protective measures, maybe relax, tougher ones you've got, but do something. Next, communicate proactive employee messages about what the employer is doing or not doing and how the employer is complying with the law. So now that you've decided, and we're go talking globally about how you're gonna get people back to the workforce, whether it's gonna be a couple days a week, whatever it's going to be, whatever your decision is is safe and you have an articulated safety rationale and you're separating desks more than six feet or you're requiring people to wear mask or you're checking whether people are vaccinated, whatever. Whatever you've decided to do, accepting that you have a safety rationale for it. The next step is to communicate that. You have to assume some of your employees are gonna be skeptical. They're either not gonna wanna come back to work for just personal reasons. Some people will prefer working remotely the way they had been during COVID. Others might be legitimately fearful of catching COVID in the workplace. And so you need to articulate your safety rationale to your employees. Especially worldwide outside the US, it's especially important that you tell people that your workplace is safe and what your analysis is for doing the return to work. Both as to safety and the business analysis. If people are gonna say, hey, we've ordered from home this long, everything's going fine. And you want us to come back to the office, that's not fair. There's the whole fear of the Great Resignation. And of course you should decide from a human resources standpoint, that it makes sense to bring people back to the workplace. But then you wanna explain to people what your rationale is, why they have to come back and a little bit of iron fist and velvet glove. We'll talk later about what your rights are as far as getting people to come back. But if you're trying to get people to come back to the workplace and you're requiring them to come back, you need to communicate how not only how important it is to try to get them to understand why they need to come back and get them to agree to come back, but to send the message in a diplomatic way that they have to come back. And if they don't, there could be ramifications. So that employee communication is important. And then also around that would be anything you need to communicate to the employees about what they need to do as far as vaccines or wear mask or how they're going to enter the workplace under the new regime post COVID coming back to the workplace. And of course, if you're going to require vaccines, that kinda brings us back to where we were a couple years ago about asking questions. We'll get into the data protection issues, but you might just wanna say, we encourage people to come back to be vaccinated, etc. But decide expressly whether you're just gonna encourage people to do things versus whether you're gonna require anything. If you're requiring, for example, double vaccinated or booster shots, whatever, the requirement, you have to just, everything you're requiring, you have to think what happens if somebody doesn't comply with that, or if they won't be honest with this or straightforward about their status. So think through that and make those communications. And then finally, decide, and I'm saying confidentially here, your receptivity to individual employee accommodation requests. If you're bringing people back to the workplace, some people are gonna say I had a baby and I can't come in. And they have personal reasons why they have to stay home. Others will say that they're immunocompromised and that they can't come in and maybe the workplace is safe for the average person, but this person has immunocompromises, etc. Decide on how receptive you'll be to those requests. Obviously, you have a duty to accommodate disabilities. Reasonable in the US and in other countries, there's analogous law. Although some people might ask for an accommodation without being disabled or saying that they have a legal disability. But the point is that before you launch this whole program, think through how are we gonna make exceptions, or how are we going to treat people who ask for exceptions? How receptive will we be? Obviously again, up to the law, if somebody has a legal accommodation that you have to accommodate by not letting them come in, you'll have to comply with that. But short of where an accommodation of a request is mandatory under law, decide your business case for accommodating these requests. And now, again, we talked about the international context. We're assuming a multinational is making these decisions globally. If you're just in one country, you just make them in that one country. But I don't think too many multinationals will want to take a piecemeal approach and say, "Hey, in the US, let's get everybody back to the workplace. But we also operate in France and China and other countries. Let each country decide itself as to when people come back to the office." Actually on second thought, no, maybe some companies will completely delegate the return to the office to their local operations. And if they do, then it's just a local by local approach. But if you wanna take at least some, obviously, you'll have to make some changes or tweaks in different countries. I just mentioned China and China can be one where the government lockdown is gonna make a return to the workplace a lot tougher than certain other countries, but decide on how proactively your company's gonna take a top down approach from headquarters and say, "Hey, this is our global. Enough's enough. It's been two years now. We're gonna return to the workplace globally. And here's how we're gonna handle the return to the workplace in all our operations around the world." So having set the table there, I wanna take the most of the rest of the time to look at the legal issues that come up in one of these return to the workplace initiatives. And then I'll mention again, the dynamics around doing a return to the workplace globally. So I'm now on part B, which is I'm calling the legal risk worldwide around post pandemic return to work. And again, we're talking today about a return to the workplace initiative, and we said, your company, if you're going to roll out a return to the workplace initiative, it's you should address a model on how you're getting people back to the workplace. We already talked about that imposing new or relaxing, but not eliminating COVID era protective measures, communicating what you're doing to the employees and deciding confidentially on your receptivity to employ accommodation request. Now, we're gonna look at those four steps within your return to the work initiative from the point of view of the law, and we're talking worldwide, 'cause we're talking about doing this globally. There are six categories of legal rules that can affect the four elements to the plan. And we're gonna now talk about the legal rules. Up to now, we've been talking about what the components of your return to the workplace initiative are? And then at the end, we'll just make a few comments about the global nature of doing this across different countries at the same time. So I wanna spend most of the rest of our time today talking about the six areas of laws implicated when a multinational is doing one of these return to the workplace initiatives. If you're telling people, you have to come back to work, whether it's two days a week, three days a week, however you're getting people back, there's six areas of law you need to think about in each country. So these areas of law could apply in your operations in Mexico, in Brazil, in, in Germany or in Japan, as well as the US or whatever countries. And those areas are, we're gonna take them one by one. But this slide I'm just putting them out. So you see where we're going here. One is COVID-specific laws that reach the workplace. Another is workplace health and safety law generally like US OSHA. Generally not COVID-specific laws, but health and safety laws generally. Next is workplace injury and infection claims And that's different if you think about it in the US context, OSHA is the government agency that sets out regulations about workplace safety. Workplace injury claims are in the US system workers' claims, in the international context, sometimes, they might be called duty of care claims. But when an individual employee claims in this case, they caught COVID at your workplace and they sue you or bring a claim through a government system, every country's different on how that works. Next is collective labor law. In US, that means labor unions, but outside the US, we have other collective labor bodies, including works councils and workplace health and safety committees. And then individual employment, law contracts outside employment at will. So we'll talk about if you're telling people, let's say, you're gonna say you must come back to the workplace three days a week. But by must, you're telling them they have to. And if they refuse and fold their arms and say, "You know what, I'm not coming." How much leverage do you have to force them to come And if they refuse to come? How much legal leverage do you have to discipline them and that's what I mean by individual employment, law and contracts. And lastly, data protection law. 'Cause you're asking whether people are vaccinated and whether they've been exposed and you you're asking people to make health disclosures, which trigger data protection laws, personal data generally does. But health data is sensitive data. For example, under article nine of GDPR. So those are the six areas of law implicated. Again, the context is your company's particular return to the workplace initiative. Every company will have a different one. So we're talking generally about your return to the workplace initiative. We've already defined what that will be. So let's go through the six areas of law possibly affected. One is COVID-specific laws reaching the workplace. During the COVID pandemic in 2020 and 2021, we saw lots of countries issuing COVID specific laws. Many of those and those laws would, for example, shut down certain businesses if you weren't a health provider or certain businesses, you were not allowed to have people come to the workplace, etc. Compliance with those laws nowadays though is mostly lifted in some countries. I'm speaking in middle of 2022, China still has some pretty strict COVID related laws about public gatherings and people coming to public places, including workplaces, but not too many other countries still do by mid 2022. But any of those laws still on the books, obviously, you have to comply with. So if, for example, a US company was doing a return to the workplace initiative globally, and they happened to be in China, they would have to tweak or carve out China because China might still have COVID laws that affect their power to tell people to come back to the workplace. You must comply with any lingering COVID-related laws that still speak to what the workplace, what a company's power is to have people show up at its workplace. And for example, these laws might require masks, they might require frequent cleanings, things like that. That's country by country. I don't think we saw too much liability under these laws at even at the height of the pandemic. So I think companies were generalizing here, but companies would comply with what local regulations were. And you still need to do that. Some countries have passed, let's say post COVID laws are late COVID laws. I'm now distinguishing the laws that were passed during the height of the pandemic to respond immediately when the pandemic was at its worst. We now see some laws that are kind of more going forward. For example, Belgium has a law called the code on wellbeing at work article 1.2-27, that requires in-house pandemic response protocols for the next pandemic. The UK Cabinet Office has issued protocols called the Living With COVID 19 Protocols. So those would be examples of laws that issued later in the pandemic as the pandemic was reaching a new stage. I think it's safe to say that those, let's call those late pandemic laws tend to be easier to comply with. For example, the Belgian law ostensibly requires companies to have some kind of emergency response plan in case another pandemic surges or the pandemic comes back. So if you're in Belgium and you're subject to those laws, you have to have that plan. But I think that as a practical matter, most of these, what I'm calling late pandemic laws will be fairly easy to comply with and will not require too much tweaking of your return to the workplace initiative. So that's all I'm gonna say about COVID-specific laws, because I think those were a huge issue in 2020 and 2021. And they remain an issue in the middle of 2022 going forward, but are perhaps not too much of an issue and that perhaps there's something your company can look at country by country, but will not require too much changing of your return to the workplace initiative with some exceptions. And one exception being mid 2022, China. Next, our general workplace health and safety laws like OSHA. Well, probably every country on earth has, let's call it roughly an OSHA law. OSHA obviously is an acronym for Occupational Safety and Health Administration. Some countries like Canada also even call their OSHA law OSHA, but obviously in other countries, the general workplace health and safety law goes by another name, but let's just use OSHA now as a generic name to mean the general workplace health and safety law of every country. Every country has a law like that. And at some level, every country imposes a general duty of care on employers in its general OSHA-like health and safety law. So someone coming to work who says, "Hey, this workplace is a hotbed of COVID. I'm not coming in there 'cause I don't have to be exposed to unreasonable dangers in the workplace." You could have an employee claiming that their local countries OSHA type law gives them a right to refuse to report to work and to stay home and work remotely. And people might claim that. you need to be ready to rebut that. I'm assuming you will rebut it of course, because if you, if your own company thought, yeah, let's say COVID had a surge. Let's say you were in a country where there's a big COVID problem. Surely, you're not gonna ask people to come back to a workplace that even you consider unsafe. So I'm assuming that you're return to the workplace plan, you have articulated a safety rationale and we talked about the articulated safety rationale. So by definition, that means you don't consider your workplace illegally unsafe. You consider your workplace does not pose a COVID hazard that's too serious to prevent you from having people come back to work. So therefore you need to have some kind of response. And that gets back to why I mentioned earlier how important it is to have an articulated safety rationale. If some employee raises workplace health and safety law and says, "You can't force me to come back. That place is too unsafe." Your response is no and explain your articulated safety rational. They say, "Well, I have a legal right not to work. Not to be exposed to unreasonable hazards. And therefore, I have a legal right to refuse to work in dangerous conditions." You say, "Well, yeah, you do have that legal right. However, our workplace does not pose dangerous conditions." And again, repeat your articulated safety rationale. In the UK, a reasonable refusal to follow a work order that could endanger your health and safety is called a claim under, UK's law called ERA article 44 and 100. That's just the UK example. Almost every country's gonna have an analogous role like that, including the US. So my point here is just foresee these OSHA type claims and then proactively rebut them saying that you are meeting your general duty of care. You have checked the workplace, you don't have COVID in your workplace. And if it comes, you have adequate responses and you get back to your aggressive articulated safety rationale. By the way, again, this is a broad generalization, so there may be exceptions, but I have just the question. How much liability under these general OSHA type laws did we see, even at the height of the pandemic? Remember even at the height of the pandemic, some companies had to shut down completely and many people worked from home. Yes, but there were many restaurants and hospitals and offices that were open even during the pandemic. I think it's safe to say that it was fairly rare or unusual to see government safety enforcers. The equivalent of OSHA officials in the US going after companies for unsafe workplace conditions around COVID. Possible, and I'm sure there were exceptions. I'm sure it happened a few times, but I don't think it happened that much. So the point is people might raise these OSHA-type claims. You should have an aggressive response of why you've already thought this through and you're not violating the local country's OSHA law in each country. And you probably, if you wanna be aggressive on that, you probably can be aggressive. I think the claims records in each country. Again, there's a generalization and you should check, but you might say, Hey, look, how many companies in France or whatever country you're talking about, have had government safety claims asserted against them because of unsafe COVID conditions? And if the answer is not that many, then that might tell you something. Next is workplace injury or infection claims like US workers comp duty of care. Separate from government OSHA-like laws that dictate regulations on workplace health and safety is the legal concept of workplace injury and infection claims brought by an individual worker. If someone gets their finger chopped off on a punch press, they bring in the US a worker's comp claim. But in other countries, in England, for example, they can bring a negligence claim and say the employer was negligent and they bring a personal injury claim. In other countries, they do have workers comp systems very much like the US. Kenya is an example of that. Those countries have a bar against an unkept personal injury claim, 'cause they force workers to bring a worker's comp claim, but they prevent them from bringing in unkept personal injury claim. Also there are countries where there's theoretical exposure if someone gets injured in the workplace, but it's a practical matter the government tends to cover most of the damages. Brazil would be a country like that. If someone gets injured in Brazil, my sense is, again, this is a bit of a generalization or not a nuanced summary, but in Brazil, the actual employer rarely faces a big claim for damages for workplace personal injury suffered because the victim of that workplace injury gets government funding and resources rather than from the employer. But the point is that how an injured worker gets compensated, how workers' compensation works in different countries, it's very country by country and you need to understand how it works in each one of your countries. The context here is COVID. The interesting thing about COVID is that it can well be a fact dispute on whether someone got COVID at work or not. One of your employees might catch COVID. Question is if he brings a worker's comp claim or sues you for negligence in a country like UK where you can do that, the question is, did that person catch COVID at your workplace or did the person get it somewhere else? And that can often be a fact question. Sometimes, it's clearer. I just saw a report today about some company that had some kind of retreat or company meeting where they gathered 1,000 people together. And so far there have been 39, I think, if I remember the numbers right. 39 COVID cases from people who attended the company event. So they're calling it a mass spreader event. Yeah, that would be a scenario where there could be liability. Each country's gonna have liability work out through its own system. But in a case like that, people who attended the company event and then caught COVID after it are probably that's an example where they will have a easier time proving causation, proving that they caught COVID at work. Yet again though, how much liability did we see even at the height of the pandemic, how many people brought workers' comp claims in the US and successful workers' comp claims where they said I caught COVID at work. I'm sure there were a lot of them, but I don't know if it was a pandemic itself of workers' comp claims is my point. Other countries, there may have been lawsuits. I caught COVID at work, it would be interesting to check. And you could check in each country how many claims like that happened at the height of the pandemic, if in each country you learn that there were some but it was not a huge number of those claims at the height of the pandemic, the odds of you facing a lot of those claims maybe less as we get later and later in the pandemic. In other words, if you're operating in certain countries and you do the research and check and there weren't that many workplace personal injury type claims or workers comp type claims in 2020 and 2021 nationally for COVID claims, then the numbers will probably be going down from there. That said, you need to understand how the workers' comp exposure works in each country. And if you're bringing people back to the workplace, the bottom line is you gotta be ready for workers' comp type claims in each country, because you have to assume that it's possible that there will be one of those super spreader situations where someone comes to the workplace they're infected. Then a lot of people get COVID later and they say, I caught COVID to work. And they'll probably have a strong case. That said again, as I keep saying, check how the law works on these kinds of claims. And you might find in each country you operate. Even the US, your dollar amount exposure is limited because people bring workers' comp claims, your workers' comp insurance premiums in the US might go up, but you're not gonna be writing checks to people 'cause they can't sue you. There's a worker's comp bar. It also works that way in Kenya and some other countries. And then there's a lot of countries like Brazil, where most of the money comes from the government and the employers don't write big checks to people who get insured in the workplace. But check country by country. You could face negligence claims at least in some countries like UK. Next is the concept of collective labor law, which is labor unions and works councils and health and safety committees. If you have any standing bodies of worker representatives, that means if you currently in your operations in any country have a union or a works council or a health and safety committee. And by the way, the health and safety committee issue is very important because we don't have health and safety committees in the US because of the unique nature of our American labor law system. But in most countries abroad, including even Canada, but most of Europe and Asian and Latin America, there's such a thing as a health and safety committee and in office environments, the health and safety committee often doesn't have that much day-to-day impact. They might help with fire drills and have a fire safety officer and maybe they meet occasionally and talk about staircase handrails and stuff like that. But in the COVID context, if you have a standing workplace health and safety committee, even if it's fairly you better check in each country where you operate, whether you have any standing bodies of worker representatives, including a health and safety committee, 'cause by definition of COVID return to work initiative is a health and safety issue, which would be within the remit or the jurisdiction of your health and safety committee. So check country by country where you have a health and safety committee. Where you do, you need to give a heads up to your, what I'm gonna call your management side labor liaison, the person who sits down with your union or works council or health and safety committee in France or in Germany or in Mexico or Argentina or Japan or China, whatever country where you have the standing body of work or, and give that person a heads up to your return to the workplace initiative. Ask that person for the person's input. For example, if you have one in China, they might say, "Hey, in China, we're under all these rules here and you're not gonna be able to do what you're doing in the US and Europe in China right now in mid 2022." Otherwise get your management side, labor liaison. Again, that's not union rep. That's not somebody who represents the employees. I'm talking about the person who speaks for management to the union rep or to the employees on the workplace health and safety committee or to the works council employee representative. Ask that person for input on getting on how best to implement your company's initiative for getting people back to the workplace. In having that conversation. Now this is country by country. It's very local. You might have a works council in Germany that's very militant. And you might have a militant health and safety committee in France. You might have no standing body of worker representatives in let's say Spain or some other country. You might be subject to a sectoral collective agreement, but you don't have anybody in your workplace who represents your people. So this is country by country for your operations. When you identify who your management side labor liaison is, talk to them about how militant the collective labor body is and how militant were they at the height of the pandemic. Maybe they didn't even have much to say at the height of the pandemic about health and safety and workplace issues. Even though some people were maybe coming back to the workplace. On the other hand, maybe they'll say, oh, this health and safety committee, or this works council is very militant and they're gonna come back guns blazing and they're gonna be pushing back hard. Then check whether you have anything about return to work in your collective bargaining agreement or work agreement. Maybe in the last two years, you did have some kinda collective agreement about return to work in one country or another. And if you did, you're gonna have to address that in your return to work for that country. And your return to work initiative might be subject to mandatory bargaining or consulting, or maybe you'll take the position it's not subject to consulting, but you need to talk to your management side labor liaison in the country on how strong that position is. And again, remember the role of these workplace health and safety. Next is individual employment law and contracts outside employment. Now we're talking about just individual employee rights and their employment agreements. Remember, you're telling people, let's pick a new country in Europe, let's say Belgium. And you're taking people in Belgium and saying, hey, you gotta come back to the workplace, starting on August 1st or whatever date's gonna be. You gotta come back at least two days a week. Now, if you're saying you must come back, you need to be prepared for what you're gonna do. If someone folds his or her arms and says, "I'm not coming." or just doesn't come back, what are you gonna do? If you're not gonna do anything, then basically, you're not requiring people to come back. If you decide, we're gonna tell everybody they must come back. But if someone doesn't come back, we're not gonna do anything. Well then, you are not really requiring people to come back at all. You're just asking them to come back and making it option. Which is okay if that's your plan. But if your plan requires people to come back, you need to think through what are we going to do if someone refuses to come back to the work? And then at this level, we're not talking about the scenario of someone who can't just go, we're just talking about someone who refuses to come back. You need to think through what your rights are as an employer. First, think through whether it's you're requiring them to come back full time or some kind of hybrid model in what you're requiring them to do. Now, what are the employer's rights when you're requiring someone to come back to work? Here, I think I can give you a bit of good news perhaps. We're talking outside the US, outside employment at will, where employer rights are much more limited than in the US. In the US, we have employment at will so where we're used to employers having more bargaining power or legal rights as to what they can tell their employees to do and not to in the US than outside. But one piece of good news is that outside the US, everyone has, to some extent, an employment contract. It's often written. In many countries, employment contracts must be in writing. Like in Mexico and China, the law requires that they be in writing. Even in the entire European Union, you have to give people a written employment agreement or a so-called statement of terms and conditions of employment, which is written, but not necessarily a contract, but it has the effect of a contract. So in pretty much, I think you'll find in your own operations outside the US, you gave people employment agreements in most all countries outside the US because written employment agreements are so common. In some cases, mandatory outside, if you take out the employment agreement of everybody who works for you, who was hired before COVID, you should have a clause in there that tells you, that tells both parties where the place of work is. What the office address is. It's often an office address. I mentioned in Europe, you have to give a written statement of terms and conditions of employment. That, there's a list of, I think it's 17 topics that have to be in that statement. And one of the 17 topics is the place of work. Place of work is very commonly part of an employment agreement. And if it wasn't written into the agreement, it would be in other onboarding documents. Anyone who took a job pre-COVID had a workplace, and you could prove what the workplace was. During COVID, you told people don't come in, work from home because you we're not gonna have the workplace open because there's a pandemic going on right now. But in most cases, employers did not permanently amend employment agreements. So at this point, you're basically just having people come back. So you're legally in a position to tell people, you have an employment agreement and you have to meet the bargain under your agreement by doing the job at the job site, our office is the job site. You can't tell us where you're gonna work, if you were. I also use the example of someone who had a bunch of restaurants and hired a waiter in one restaurant. That waiter doesn't legally have a right to show up at a different restaurant that the owner also happens to own and say, "Well, today I'm gonna work in this other one." No, the job was to work in the restaurant that that particular waiter was hired to work in. And if that waiter does not show up at the restaurant one day, they're abandoning the job. You don't even have to fire someone if they don't show up. You might have to wait two or three days. But someone who stops showing up to work is deemed to have resigned or abandoned the job and you can treat it as a resignation, not a dismissal. And if you tee yourself up right in this return to work situation, you can say, look, you agreed, to each employee. Now in each country on our talking generally around all the countries on the world. To each person who was hired before COVID, you could say, "You agreed to work at this job site. Yes, we had to waive the job site report to work requirement during COVID but now, all we're doing is reinstitute the original requirement, and you don't have a right to tell us where you're working. And therefore, if you don't come in, we're telling you." Let's say you're coming in back to work full time. And you tell someone, "If you don't show up and you insist on working from home, we're gonna treat that as a quit, as a job abandonment. We're not even gonna give you severance pay, treat it as a dismissal because all we're asking you to do is show up to the job site that you agree to work in." Now, obviously in some countries, the judge labor judges are employee-friendly and you could get in dispute, but I've talked to lawyers in other countries and they agree that yeah, technically, if you pitch it that way, you've got a plausible case there. The employee then has to come up with a reason why they can't come in. And obviously if they say I'm sick and I'm immunocompromised, then we're getting into a reasonable accommodation argument, etc. But it's pretty darn hard for an employee to say, "I have a right to work from home." If their job employment agreement has a work site of your office. And now I kept saying people hired before the pandemic. Even people you hired during the pandemic, you need to look at your employment agreement, but you may well have tweaked the job site clause in the employment agreements of those who were hired during the pandemic to say that you're being hired now, and you'll be working from home initially, but you may well have a clause that says they have to come to work when you say. If you don't, you literally hire people to work from home permanently. Basically you gave someone let's say, you hired them during the pandemic. And you said you, the work site clause of the employment agreement say you're working from home. Well, you can't necessarily force those people to go back to work, but you hired those people expressly as telecommutes not as work site, job site-based employees. So my point is just that if you're trying to get people to come back to work and you're willing to be tough, obviously in the Great Resignation, there's HR reasons around not being tough, 'cause you might lose people. But if you wanna be tough, you actually, if you look at the original employment agreements and the onboarding documentation, you may well be in a surprisingly strong position to say, all we're doing is asking you to comply with the agreements that you agreed to. One key term of that agreement was to work at our job site, not in your house. And if you don't do it, you're failing to show up to work and you're abandoning your job just like anybody else abandons their job if they fail to show up to work, other individual employment dispute scenarios that come up are a whistleblower claim. Somebody might say, "You're making me go back to work and I'm gonna call the government." And anybody who tries to package a whistleblower claim around return to work, they're gonna have to blow the whistle on something. They're gonna say you did something wrong. So that gets back to your articulated safety rationale and your response to any whistleblower type claim is you're not a whistleblower 'cause we didn't do anything wrong. If you try to report us and say we did some unsafe practices, we're gonna explain to whoever you report us to that no, what we did was perfectly legal and safe and you're back to your articulated safety rational. Also somebody of course, can bring a discrimination claim, but we've been talking about that as we went. Then last point here is data protection laws. I won't go into this too much, this is very important, but I won't go into it only because this was such an acute issue during the height of the pandemic that I suspect you've thought through some of these issues. But if your return to the workplace initiative involves asking people to disclose whether they're vaccinated or doing temperature testing or asking people when they got their booster shops or where they've traveled to, or whether people in their homes have been exposed to COVID or whether they've been exposed, they gotta test negative. All that stuff is medical information. And as I said before, medical information is sensitive data under GDPR article nine. And it's also sensitive under, many, many countries have data protection laws based on the EU GDPR model. So you need to understand how you're processing the personal data and what your position is as to what you're asking is legal. Again, I assume you've been through this already during the height pandemic and you're probably rushing this down, but you need to be careful and you may not be able to ask people certain things about their medical status, because that's just too hard to comply with on data protection law. Lastly then, I just want to point out our final part C is multinational global strategies for post pandemic return to the workplace initiatives. And this I've been saying all along is that we've been assuming you're a multinational company. And the way you're thinking about return to the workplace initiatives will be global. And you'll think about a top down strategy where you're ultimately wanna get people back to the workplace in all countries, not just in your headquarters country. And so you need to think these issues through globally and involve your local offices, your country managers. And as I mentioned, your management side, labor liaisons, who deal with your worker representatives in foreign countries, etc. Ultimately, you're gonna have to cascade down your top down return to the workplace initiative and implement it in the different countries where you're operating around the world. And you need to do that at some level on a country by country basis. And again, be ready to make exceptions. I keep using the example of mid 2022 in China as a place where you might have to make exceptions. You might have to make exceptions for different reasons. Maybe you have manufacturing facilities in some countries and in other countries, only sales offices, for example. That would be an example where you'd make exceptions or tweaks to your plan because you have very different workplace needs and working on site, etc. So with that, I wanna thank you very much for attending the program and good luck with the return to the workplace initiative. As I think we made clear today, it's an very important issue and in the Great Resignation environment we're in, it raises HR issues as well as legal, but it's perhaps a work in progress or a more ongoing initiative and not something you can do in a day, but all the best with that. Thank you very much, and thanks to Quimbee.