Recently, we participated in a dialogue with workplace investigators focused on what trends we’re seeing pop up in workplace investigations with respect to Covid-19. These conversations were so insightful, we felt we needed to share what we’ve learned in the hopes that clients, companies and employees can engage in a broader discussion about how we can, and should, tackle these challenges as we ease back to a new “normal” workplace in the coming months and years.
Continuation of Remote Work
No doubt, office-based companies needed to re-think, re-tool and regroup in order to rise to the challenges of converting in-person employees to a largely remote-based workforce. Not without difficulties, of course! Growing pains associated with secure remote technologies, employees experiencing the real-time difficulties of a pandemic while trying to work, juggle the responsibilities of childcare, remote schooling, possibly elder care, AND mitigate personal health risks, were (and continue to be) constant sources of struggle for many employees and companies. Yet over the past year, employers and employees have come to not only accept, but rely, on the flexibility remote work entails. Case in point? The on-again-off-again school closings and re-openings requiring overstretched working parents to be available to support their school-aged children while working.
Additionally, companies learned that costs associated with brick-and-mortar offices can be somewhat ameliorated by remote work, even with its inherent challenges. Moreover, remote work’s relative success has prompted some companies to boldly decide to leave high-priced urban centers and embrace the idea of shifting to remote work permanently, thereby reducing their capital costs for commercial space.
Trend #1: Remote-based companies still face familiar investigations
Indeed, a remote workforce is not without its issues. Investigators point out that it’s still possible to experience harassment, discrimination, disability and privacy issues remotely – therefore these familiar complaints remain very active. For instance, an employee complained that their employers asking whether they had Covid, or were tested for it, when they called in sick violates disability and privacy laws. In another example, I recently helped a client navigate racial bias and hostile work environment claims in a 100% remote workforce with team members based in Idaho, Washington, New York and California.
Employers report other sticky issues cropping up. For example, wage and hour complaints due to the difficulties in tracking employee’s time worked at home. (I think we can all agree it’s highly disruptive to have Zoom work calls and Google Classroom meetings running at the same time). We’re also hearing how employers’ flexibility regarding when employees work can sometimes create unintended pressure to work more and raise questions of overtime or unpaid wages. Finally, as companies have modified an employee’s job duties in order to stay open or adjust to new market demands, the slippery question of shifting employee classifications (i.e., exempt, non-exempt) can trip up even the most savvy HR departments.
With continued remote work on the horizon for many companies and their employees, how will we address these concerns? Will companies decide to shift back to in-person workplaces where managing wage and hour issues may be easier? Will we see a rise in technology addressing some of these pain points? On the flip side, will future employees double down on only working remotely if they’ve transitioned to a new geographic area and are unwilling to return to high-priced urban centers?
Trend #2: Return to Work Initiatives and Retaliation, Harassment and Reasonable Accommodations
For those businesses who need to have some, or all, workers return on-site, we have clear indications that it’s not an easy path, by any means. Even if your HR and in-house legal team have become veritable experts at navigating the onslaught of Covid-19-related federal, state and local laws and requirements for safely re-opening the workplace, investigators are already seeing an uptick in calls for investigations about retaliation, harassment and requests for reasonable accommodations in order to return to work or seeking to continue working remotely. Such concerns include:
- Employees seeking an accommodation to continue remote work due to an immuno-compromised person at home or living in a household where one or more members is not yet eligible for a vaccine;
- Employee complaints of anxiety or other mental health issues due to the risks associated with on-site workplaces;
- Employee refusal to be vaccinated (i.e., due to religious beliefs, lack of confidence in the vaccine, etc.).
Investigators are also hearing from clients fielding complaints from the workforce about mask protocols, including employees refusing to comply with a mask policy, donning a mask improperly, or complaining about a co-worker’s failure to comply with a mask policy. Related complaints regarding harassment and retaliation for mask non-compliance are also abundant and continue to plague employers.
Trend #3: Vaccines as mandatory or optional?
Employers face thorny issues regarding vaccines and whether the company can, or should, mandate vaccines (EEOC guidance on COVID-19 makes clear they can, with some possible challenges). Or should they consider creating a rewards-based system to encourage vaccination? Employers are considering whether they will, or can, develop plans to offer Covid-19 vaccines on-site, like they have done with typical flu vaccines in the past. Yet many questions remain unanswered and untested. Will vaccines, or those who refuse them, impact workplace morale? Will non-vaccinated individuals face harassment, shame, retaliation or hostile work environments? Even if employers do their best to implement good policies, some worry that seating and desk arrangements or continued mask wearing will be telltale signs of a non-vaccinated co-worker and impact workplace behavior.
Trend #4: Medical data privacy with Covid protocols in the workplace
There is signaling from employees and privacy experts alike that privacy concerns will become a hot-button issue as we return to in-person workplaces. As employers weigh their options for managing and ensuring a safe and healthy workplace, there are new technologies for temperature screening, self-reporting apps, thermal cameras and facial recognition technology at play. However, the resulting collection of private data and specifically, medical data, raises several questions: Who will have access to the data? How will companies safeguard the data it collects? How effective are the policies in restricting the use of the data?
To be sure, we are collectively facing a new frontier in our workplaces. What we do know is that regardless of whether employees continue to work remotely or return to in-person work sites, like everything else Covid-related, the landscape will continue to evolve for the foreseeable future. As for the rest? Let us know your thoughts! Drop a comment, email us or ping us on social media. We’d love to be part of your collaborative discussion on managing Covid-19 in the workplace in 2021 and beyond.