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Firms must prepare now for eventual reopening of work space

New York is still weeks away from phasing in a restart of regular business activity, but companies need to decide now what their post COVID-19 workplace will look like.

What percentage of your workforce will return immediately? Have you met Occupational Safety and Health Administration (OSHA) requirements for employee safety? Are you considering temperature testing for employees? How will you manage your employees’ flood of unused vacation time?

Kim Harding

Kim Harding

Those are just some of the many questions employers better have answered before reopening the office to employees, according to Kim Harding, partner at Nixon Peabody LLP who works in the firm’s labor & employment group.

Most employers will probably implement a phased-in return, perhaps staggering work weeks or bringing back only employees who are essential to office operations while allowing the remainder of the staff to work from home, she said.

“It’s reasonable to think some employees will never return to the workplace and will continue to work from home,” Harding said during a Monday morning webinar sponsored by the Greater Rochester Chamber of Commerce.

That means an employer must evaluate what expense reimbursements should be expected and what technological or security enhancements must be implemented.

Still, the majority of employees probably will be returning to the workplace. Thus, good-faith efforts to prevent an outbreak of the coronavirus must be taken, Harding said. Those precautions could follow OSHA’s suggestions for some sort of structural barriers as well as the elimination of the collaborative work space. Employees that have direct contact with the public may require personal protective equipment.

Temperature testing of all employees has been considered by some companies, but Harding said implementation of such a policy requires careful planning.

The testing must be private, the results must be kept confidential and ideally the tests would be administered by a medical professional. Since the latter may be unrealistic for most companies, it should at least be done by someone in management with a full understanding of privacy requirements.

For companies that have continued operations during the pandemic, use of paid time off has plummeted. Who wants to burn vacation days when you can’t go anywhere?

But what happens when everyone wants three weeks off between July 4 and Labor Day? Your firm may not be able to grant every request.

“If you’re worried about not having sufficient staffing, you may consider PTO payout,” Harding said. “Maybe that would be too much of a hit to the bottom line, but the use-it-or-lose-it policy will be very challenging. You might consider a one-time revision.”

The work-from-home edict now in place could bring about an interesting quandary for employers in the future. Such as: If an employee has maintained the necessary level of productivity, how could a future request to work from home be denied?

Harding also warned there could be an increase in litigation because of the rush to understand rules and regulations regarding the coronavirus and workplace changes. Economic fragility often spawns more legal action by employees.

“With everyone being forced to think things through quickly, some employees may feel you may be treating employees differently or they may feel discriminated against,” she said. 653-4020