I hope all of you are safe and secure, wherever you are working or sheltering. With our persistent joint efforts and with all the help we can get, we will get through the coronavirus crisis. When will America’s workplaces return to normal?
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My short answer is, we will never return to the normal we remember, but with a lot of effort, we should reach a new stasis in 2022. One thing is certain: The workplace in 2022 will look far different than it did a few months ago.
Over the next 18 immensely important months, all of us will face short-term crises that will lead us to the new employment reality. Of course, we need to have a strategy to take us through the next year and a half, but we also need a vision of where we hope to be heading
‘The Best-Laid Plans of Mice and Men Often Go Awry’
That axiom by Scottish poet Robert Burns has never rung truer. We’ve all sat through dozens of long-range planning programs and disaster preparedness sessions without ever coming close to imagining the circumstances we’re seeing today. We’ve endured programs in which we were asked to anticipate and train for disruptive technologies and the new skill sets some employees would need, but nothing approaching the current situation was ever put on the board.
Had anyone suggested a hypothetical training session on what to do if every employee was considered a potential carrier of a fatal contagion and most of America’s workforce was ordered to shelter at home, most businesses were ordered to lock down, and the unemployment rate increased tenfold over the course of a month, nobody would have attended the program. So none of us was prepared for this. Still, employers across the country are rising to the many challenges we’re now facing.
First, Focus on the Immediate Issues
The current state and county limits on business operations and employee attendance at the worksite will determine our actions for the next month or so, dictated by public health needs. Hopefully, you’ve established remote work setups for employees who can perform their jobs at home.
Essential businesses that remain open should have implemented and posted procedures for hand washing and sanitizing, wearing masks, and social distancing for employees who are still coming to the worksite as well as provided sufficient space, hand-washing stations, and supplies.
Benefit policies and procedures should be designed to support operations while maximizing the benefits to which employees and former employees may be entitled. We’ll likely remain in this crisis period for the next 2 months.
We won’t stay in crisis mode past June—employees and businesses cannot stay dormant and forgo income forever. But California and many of its counties, along with most of the nation, won’t risk a return to the trends and patterns of contagion we saw last month; the spread of coronavirus will return with ferocity unless significant public and workplace restrictions remain in place. So, as we reopen commerce, we’ll be subject to employment rules and norms quite different from those under which we’ve lived for decades.
Necessity will overtake some employment rules for at least a while. Despite 50 years of age discrimination law, expect rules that keep older workers at home while younger employees report to work. And despite a half century of disability law, expect rules allowing employers to take employees’ temperatures before permitting them to report to work, prioritize the hiring of people who have the COVID-19 antibody, and bar employees from the workplace depending on where they’ve traveled or whom they’ve spent time with.
The disability law principle that employees don’t have a right to know anything about coworkers’ medical circumstances or accommodations will likely be overridden by the doctrine of immediate threat because everybody will want to know the infection status of everyone else at the jobsite.
Ramp Up for the Return Through 2021
On a practical level, the return to an active office environment will require some changes. Physical space between employees and between your staff and visitors or customers likely will need to increase—which could be accommodated by flexible shifts or locations. New sanitation protocols and procedures and a ban on congregating anywhere at the worksite should be put in place.
You might also consider a phased return of your workforce while your business ramps up. But remember that any decision to favor one employee over another could result in a discrimination claim, so be sure you have a clear and legal reason for your choices.
Public health concerns will remain foremost in the policies of employers and regulators during the next 2 years as the virus ebbs and flows. The spread of coronavirus will subside over the summer, but experts are wary of a rebound in the fall. It would be great if we had a vaccine ready by then, but researchers say that’s too soon. Similarly, while we’re hoping for a rapid miracle cure to take the fear out of the disease, we can’t count on that.
With luck, a vaccine should be developed by the fall of 2021, although we won’t know for 6 months how well the first batch of the vaccine worked. I anticipate a stable, fully functioning employment environment in 2022. None of us know what the new normal will look like, but there are some clues to help us prepare for it.
The Coriolis Effect: Where Will the Best Workplace Be?
“The Coriolis effect” is the proposition that as we aim toward a target on Earth, we need to account for the fact that the planet is turning, meaning the target doesn’t remain stationary. The clearest example is two people throwing a ball to each other from opposite ends of a spinning merry-go-round. If you aim at the spot where the other person is, you’ll miss because she will have spun away by the time the ball reaches her. Instead, you should aim at where she will be when the ball gets there.
Likewise, you cannot aim to reopen your business where and how it was 8 weeks ago because everybody and everything has been spinning in a new direction since then. Pointing employers toward the 2022 target might actually be a silver lining to this awful pandemic, forcing us to move in that new direction out of necessity.
Two months ago, many successful employers were stuck in a classic dilemma: How do we keep workers efficiently tasked in today’s business environment while simultaneously retooling and retraining the workforce for tomorrow?
We knew that disruptive technologies and new and different skill sets were a challenge to the existing workforce, and we were grappling with how to accommodate that change with minimal stress on employees—who want the satisfaction of doing their current jobs productively.
One choice has now been made for us with office disruption a given and the old reality already shaken. We should recognize that and take this forced interruption to our businesses as the springboard for our new operations.
Successful businesses will envision what and where they need to be at the beginning of 2022 and take steps now to get there. Don’t aim toward where you were last month but rather toward were you will be next year. Here are some things to be aware of:
- Your workforce will telecommute more. Whatever your past rules were, this crisis has proven that you can set up remote workstations if you need to, and the pressure to do so will mount. Employers will devote the money saved on rent to improvements in communication and technology. That creates challenges, ranging from keeping track of employees’ working time, to preventing distractions in the home office, to enforcing employment law posting and occupational safety obligations.
- Workforces will rely on fewer people and more technology. The value of personal contact will be replaced by the value of safe space. Many employers that are required to reduce the density of their workplaces will do so by supporting fewer employees with beefed up technology. Employees will need training in those (or other) new technologies. The current business lag could present the opportunity for that training to occur.
- There will be a new balance between personal privacy and workforce safety. At least over the next year, job assignment decisions will often be made on the basis of age or medical condition, likely with proof-of-health standards heretofore unheard of. The Equal Employment Opportunity Commission recently issued emergency guidelines for employer inquiries into employees’ COVID-19 exposure that broaden previously permissible inquiries. I expect public policy to change with those emergency rules, creating new personal and employer obligations to prevent disease from spreading in the workplace and beyond.
- Even before this crisis, employees and applicants sought jobs that provided flexibility and a commitment to their well-being. Our experiences with coronavirus will reinforce those goals with a new intensity. Taking steps to create a safe workplace that allows a sense of flexibility and well-being will be the key to obtaining the best employees.
Solving Crises While Looking Ahead
It’s difficult to keep your eye on distant signposts while traversing a rocky precipice, but that’s the job we have. Keep your eyes on the ground: Every early detail you get right helps lay the foundation for an 18-month course back to full operations and more robust business. More important, it can save lives. Containing the virus’s spread and restoring public health has to be your first priority.
But you should also know where you want to be when this is over. Should your workforce look exactly like it does now? What new skills or resources will your employees need? Will you be in a position to attract the best talent for your organization’s needs? How will you incorporate remote work in your business structure? Are you poised for the new needs of your customers or clients?
Nabil Sabio Azadi wrote, “When fishermen cannot go to sea, they repair nets.” While some of our efforts are hobbled by the coronavirus, take the opportunity to prepare for the new horizons ahead—while staying safe, everyone.
Mark I. Schickman can be reached at Freeland Cooper & Foreman, LLP, San Francisco, at schickman@freelandlaw.com.