August 2020 Volume 2

OPERATIONS & MANAGEMENT

accommodation.” https://www.eeoc.gov/wysk/what-you-should know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo laws. This is a high standard. Per the EEOC: “A direct threat assessment cannot be based solely on the condition being on the CDC’s list; the determination must be an individualized assessment based on a reasonable medical judgment about this employee’s disability – not the disability in general – using the most current medical knowledge and/or on the best available objective evidence.” We read this, practically, to mean that employers (i) should put all generally-applied safety procedures in place, (ii) invite employees to come to a designated individual with any questions or concerns; and (iii) address the concern(s) raised by the employee and not concerns (as to specific individuals) the employer may have. Employee Productivity: What we don’t see is a lot of discussion of the more compelling longer-term challenge: How do employers, or how can employers, deal with productivity issues? We have all been in meetings where a participant is interrupted at home, often by children (and we are parents, so we get it.) There was a recent article that Florida State University was going to ban remote workers from watching their children. Our first reaction was – how are they going to do this in the current situation? (We recognize that these types of requirements were not uncommon in pre-COVID teleworking arrangements.) Our second reaction was – we don’t think this solves the problem (assuming solving the problem was the goal). What do the parents do? Parents want and need to keep working. And, presumably, employers need their employees who happen to be parents. But in many places, there is limited available outside childcare, and those of us who historically have help from our own parents may not (as they have concerns about contracting COVID-19). In short, this is another situation where going back to the “old normal” just may not be possible – or at least not now. It strikes us that the real issue here for FSU – and we know nothing more than what we read in the news – is that there are productivity issues, or at least perceived productivity issues, with remote workers. Some focus on parents, as their other obligations are visible. But employee productivity issues in the remote work environment extend beyond parents, and these issues are another negative economic impact of the changing work environment, albeit one that is much more difficult to quantify. While the “new normal” will continue to evolve, we believe more remote work will stay – whether for just a “while” or in perpetuity. With that, management of remote work needs to take center stage. We all moved into the remote work of 2020 without much, if any, planning. And we recognize that, since then, we all have been trying to keep up with the day-to-day as well as the foundational issues like how do we survive, and thrive, going forward. So, we didn’t give a lot of thought as to new management issues. Questions for consideration include: • How do managers check in with their team? • How do managers communicate about expectations? • How do managers communicate when expectations are not being met?

• How is team comradery and collaboration maintained when working remotely? • If remote work is the standard, when (if ever) do you mandate in-person interaction? There is no one-size-fits-all answer to these questions. So much will depend on how your organizations operated historically. But these conversations are imperative to ongoing operations. Perhaps you start with what’s already in place, e.g., identify those managers and/or teams who are thriving and ask them about what they are doing. Perhaps you set uniform management standards, e.g., each supervisor have to have a weekly, bi-weekly, etc. actual conversation with each of his/her direct reports. In other words, not just email. And/or managers should start to do monthly, quarterly, etc. check ins for each direct report identifying what is going well and where there are challenges (or “opportunities,” as a lot of companies like to say). The details of the plan likely won’t matter as much as the fact that there is a plan. In early March, no doubt most (including us) thought that COVID-19 would have a disruptive but temporary impact on the workplace. Organizations focused on simply weathering the rapidly changing business and legal environment. But now we need to look longer-term and consider how to identify and address the broad issues they will face inmanaging their workforces in this “new normal.” ■

Corey represents and counsels employers in a broad range of employment and labor relations matters. His litigation experience ranges from single plaintiff discrimination cases to large class actions brought under state and federal law, including the Fair Labor Standards Act (FLSA), the Employee Retirement Income Security Act (ERISA), the Labor Management Relations Act (LMRA), and Americans with Disabilities Act (ADA). He has also represented employers in collective bargaining negotiations and grievance arbitrations. Johanna Fabrizio Parker is a partner in Benesch's labor and employment group. Her practice involves representing and counseling management clients in a wide range of complex employment matters, including claims of discrimination, harassment, and retaliation brought under federal and state law, as well as wage and hour claims, and matters involving noncompetition agreements and trade secrets. She can be reached at jparker@beneschlaw.com.

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