Coronavirus (COVID-19), HR Management & Compliance

COVID-19: We’ve Reached ‘The End of the Beginning’

Most thought COVID-19 would be a short-term crisis. Remember that the U.S. Centers for Disease Control and Prevention’s (CDC) early slogan was “15 days to slow the spread”? The consensus solution was to wash our hands, keep socially distant, and shut down the country for a couple of months.

COVID19
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Assuming the problem would be short-lived, Congress provided limited relief including bailouts for certain industries, Payroll Protection Program grant/loans to cover small-business payrolls for 60 days, stimulus checks to most families, enhanced unemployment insurance (UI) benefits for 6 months, and new coronavirus paid leave benefits that expire on December 31, 2020.

Well, you probably know—even with a vaccine on the horizon—we are maybe only at the halfway point. What does that mean for employers in 2021?

First, the Bad News

Things did not go exactly according to plan. To be fair, there really was no coordinated plan from the get-go. At the outset, when large cities on the West Coast and New York City were seeing a huge spike in coronavirus cases, there was a critical scarcity of personal protective equipment (PPE) like masks, face guards, and gloves, which was quickly followed by a perceived shortage of ventilators.

Those problems were resolved, but a lingering shortage of basic cleaning supplies remains. Also, we still don’t have enough testing capacity to screen every American on demand and regardless of symptoms, something important to do, because asymptomatic people carry and spread the infection.

While the CDC promulgated helpful guidance, the Trump administration didn’t centrally manage the pandemic and instead allowed each governor to set different public health standards, which in turn led to the reopening of the national economy on a state-by-state basis.

The patchwork approach allowed some businesses (particularly retail and restaurants) in one state to reopen before the same business could reopen in another state. Even within a state, a metric-based approach produced uneven results. For example, in New York, restaurants and stores in the Upstate regions were able to reopen well before those in New York City.

As of mid-October 2020, more than 8.8 million Americans have been infected, and 226,000-plus have succumbed to the disease—both rates well above those in other advanced countries. Stimulus checks were spent months ago, and enhanced UI benefits started to run out in August. As of mid-October, a third round of stimulus negotiations have stalled, and travel and leisure businesses are on the ropes.

Before any potential new layoffs from the airline industry, the unemployment rate is just under 8% with about 850,000 people losing their jobs each week. With many schools open only on a remote basis, working parents with school-aged children remain challenged.

Some states in the Midwest that were spared the infection in the beginning are seeing it rage now. Other states, like New York, which bore the brunt of the initial wave and successfully beat it back, are starting to see a flare-up in hot spots. The development is causing the “snapback” reimposition of certain pandemic protocols that will adversely affect those businesses struggling to reopen. All this has been occurring before the onset of the common flu season, which will complicate things by overwhelming current screening protocols designed to identify identical COVID-19 symptoms.

Now, the Good News

While the bad news seems overwhelming, there is some good news. Like the rest of the world, Americans are tough, resilient, and adaptable. In short order, we got used to “Zooming” from home, working staggered shifts, and complying with mandated screening, mask wearing, and social distancing.

All manner of businesses have found ways to deliver services remotely, causing employers to step up their game with respect to increased remote computer access for employees and better Internet and smartphone applications for customers. Internet retail giants like Amazon and surrogate shopping services have only grown because of the demand for delivery of products to homebound customers. A cottage industry of “pod” teachers has arisen to teach children whose schools are closed, which has the added benefit of allowing parents to work or telework more effectively.

Since the beginning, the promised Holy Grail for the pandemic has been an effective vaccine. The selling point was that the country could fully reopen once the population was immune to the virus. Without a vaccine, some population-dense and venue-based businesses, like theaters, auditoriums, and stadiums, can never reopen.

The good news is, instead of taking years to develop, several vaccines are showing great promise. Putting aside President Trump’s “Operation Warp Speed” and the prospect of a vaccine before Election Day, an effective vaccine is more likely to be available by December 2020 or January 2021—still a remarkable feat.

Why Is This Only the Halfway Point?

On balance, a lot of work remains to be done before we’re “back to normal.” While it is difficult to predict, it’s certain we won’t get there immediately even once the vaccinations start to roll out. Why? No one knows (yet) what the vaccine will look like.

Some promising vaccines will have troubling logistical issues, including keeping them frozen and requiring two shots. Demanding transportation and storage requirements will limit who can provide the vaccine and how. A two-shot vaccination regime will make it far from certain that the person who gets the first injection will show up to get the second dose in the specified shot “window” or at all.

Moreover, if you haven’t been following the news, many Americans may not get the vaccination for a variety of reasons. A Gallup poll from August 2020 reported that 1-in-3 Americans wouldn’t get vaccinated:

  • Even before COVID-19, some citizens refused to vaccinate their children for chicken pox, measles, and other preventable diseases based on religious or purported health concerns.
  • After COVID-19, a lot of Americans fear any vaccine developed during the “Operation Warp Speed” program, which some feel was rushed for political purposes and may not be safe.

Of course, their attitudes may change if a new president and his health advisers make assurances and urge all Americans to get vaccinated.

In short, a slow immunization process will delay a full recovery. Until all people are vaccinated, we’ll continue to rely on screening and testing. Since asymptomatic people carry and spread the virus, however, screening for symptoms is less than predictive, leaving testing as a better predictive tool.

Unfortunately, many rapid COVID-19 tests have produced false results, which are useless as a screening tool in the workplace, a school, or a store. Similarly, more accurate coronavirus testing is worthless as a rapid screening tool because it takes 1 or 2 days to develop a report.

While pro athletes and a select few others have access to effective and rapid virus testing, it’s still elusive for most Americans. We’ll be closer to a full recovery once employers have access to a simple, off-the-shelf test, like a home pregnancy test, that gives a reliable result within minutes.

Are You Ready for 2021?

Assuming it will take several months to implement an effective vaccination and testing program, you can expect the current status quo to continue. Until most people are vaccinated (or at least tested), the existing pandemic protocols (screening, PPE use, social distancing, cleaning and hygiene, contact tracing, etc.) will likely remain in place for a good part of 2021.

Expect to continue with remote work by your employees. Working from home will continue to be problematic, however, for those who are also watching over children whose school is closed and are forced to learn remotely. In addition, if we have a new president, be prepared for more aggressive enforcement of reasonable accommodations requests, such as remote work, from “high-risk” employees fearful about returning to work.

Since many schools remain closed or parents have opted for virtual learning for their children, you should understand how the courts and the U.S. Department of Labor (DOL) have interpreted the Families First Coronavirus Response Act (FFCRA), which allows for paid leave to parents whose children’s school is closed.

While the FFCRA paid leave benefits are scheduled to end on December 31, it’s likely the measure may be extended into 2021. Similarly, if there is a new president, expect a much more liberal and aggressive interpretation of the Act’s benefits, which could subject employers to additional liability for denying the leave requests.

Finally, anticipate that effective vaccinations may be available at some point, and understand the EEOC’s rules on whether you can mandate vaccinations for the workplace. The agency has promulgated specific guidance requiring you to have a viable business justification for mandatory vaccinations.

While the policy may be easy to justify for first responders, healthcare professionals, and teachers, you should develop a justification if mandatory vaccinations are important to your organization’s functioning. The EEOC also will allow an employee to opt out for religious and health reasons. So, ensure your vaccination policy has needed flexibility.

Now is the time to refine and improve your remote work, FFCRA paid leave, and vaccination policies. Consult with employment counsel on how to be ready for the new challenges coming down the pike in 2021.

Paul J. Sweeney is an attorney with Coughlin & Gerhart, LLP, in Binghamton, New York. You can reach him at psweeney@cglawoffices.com.