May 2021 Volume 3

OPERATIONS & MANAGEMENT

Navigating the “New Normal” of Work By Johanna Fabrizio Parker

So, the vaccines are here. Distributions seem to be ramping up so that more of us are/will be fully vaccinated in short order. Some states have lifted restrictions (with varying opinions on the wisdom of such decisions). Whether sooner or later, the general expectation is that things are moving toward “normal.” But what does “normal” mean for employers post-pandemic? The short answer is that employers can define what that “normal” looks like. Our “new normal” will be back to business as usual I expect that many employers will want to return to business as usual. For those of you who have had some or all of your employees at work, e.g., manufacturing, there may not be a “return” but rather a sigh of relief that all those extra considerations are leaving (or even gone). For those employers who have had some or all of employees on remote work, and who want to go back to regular in-office work, there will be a transition period. 1. Who do you bring back first? Last time we talked about how you couldmandate vaccines (provided you take all the proper steps). I suspect many of you adopted a “wait and see” approach here -- both because your workforcewas still remote (so it wasn’t a pressing issue) and just for the practical reason that the vaccines were not largely available to the general working public. Now, you may be faced with a different reality. But I think you can continue to defer, or at least see what your own numbers look like. I do recommend getting information from employees as to whether they have been vaccinated -- and this is a “yes” or “no” question. You do not want to ask for additional information, such as why or why not (at least not yet, and hopefully not ever). You can then see whether you have a significant enough percentage for your own comfort of “herd immunity” within your environment. Or, if you are willing to continue remote work for some period, you can require vaccinations for in-office work. But you need to make sure that employees are not disadvantaged for not being there. For example, you cannot assign the better projects to those in the office. And you need to continue to provide access opportunities to all employees -- whether in person, on video, etc.

2. What about employees who don’t want to come back? While I anticipate that many employees will be anxious to return to the office (at least initially), I also think that a not insignificant group of employees will not want to return. If your plan is to have everyone back, then I think employers should be very direct about that. And to the extent you can provide some advance notice, practically and for purposes of goodwill, I would do so. But you also need to be prepared to address the stay-at-home requests. While the legal guidance has said that the pandemic does not create a right to telework as an automatic accommodation, practically, employers will need to consider disability-related requests here. Fair or not, we would expect the EEOC and other regulating authorities to cast a skeptical eye on claims that telework results in an undue hardship on a business where employees have been working remotely for over a year. And toward that end, I recommend setting up a workflow at the outset -- both to manage the inquiries so you do not have to recreate the decision- making process each time, and to ensure consistency in approach. To the extent you make exceptions to a “work-at-work” environment, you have to be willing to do so for like groups. Also, the government loosened certain “continuous workday” requirements for the non- exempt population during the pandemic. In other words, with the pandemic, non-exempt employees could have breaks in the day, as opposed to the general rule that they are “on-the-clock” from starting work to ending it. There is no guarantee that this more relaxed time measurement will continue -- so employers should be especially mindful of continuing remote work for non-exempt employees. 3. What changes will we keep? I think a lot about how my work has changed this past year. I have always spent a lot of time talking with clients. But, until this year, I cannot remember many -- if any -- regular video calls. My conversations were just that, conversations. Now I “see” people regularly. And I like it. Once I got over the “weirdness” of being on camera, I could appreciate the personal connection. For employers where everyone is in the same location, video calls just may end with “work-at work.” But for employers with multiple locations, or

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