November 2020 Volume 2

OPERATIONS & MANAGEMENT

COVID-19: Coming to the end of 2020 . . . and then what? By Johanna Fabrizio Parker

As I write this, we are 8+ months into what I think of as the day to-day impact of COVID-19. We have had quarantine and various levels of shutdowns. We’ve all learned terms such as “social distancing.” In many ways, we are no longer dealing with the daily wave of new information. There has been no new legislation specific to COVID on the federal level, and the Families First Coronavirus Response Act (FFCRA) is set to expire on December 31. Health officials seem to have settled into safety recommendations as opposed to what seemed like the daily/weekly changing directives. But the overall theme I’m hearing (and feeling, many days) is that we want 2020 -- and all this -- to be over. We want to go back to “normal.” I can’t say if and when that happens -- no one can. But I do believe employers need to plan for “more” of all this through next year. So I wanted to take this issue to address some general questions FIA is hearing from members. Of course, this is not legal advice -- just some general thoughts as to our current environment. Please see your own counsel with specific questions. Return to the Office (or Continuing Return): 1. Can we make employees return to the office? Generally, yes. Because states and localities have been directed to take action on their own, you do need to look at where your office is and what, if any, requirements exist there. But absent some restriction, you can call employees back -- provided that you do so in a uniform, non-discriminatory manner. You should also have a

process where employees can make requests for accommodations. As of now, I don’t know that your legal requirements with respect to the duty to accommodate have changed, but practically employers seem to have a greater obligation to have these conversations and make these individual assessments. 2. Can I prevent a “high-risk” employee from returning? No. If an employee wants to return, and you have employees returning or at work, I would not prevent that employee from doing so. Rather, I would address any safety concerns for him or her in the same manner as you do for other employees. 3. For those who have not returned, is there an anticipated return date? No. So much of it depends on your own business needs and your geography. Also, while some schools have reopened (or reopened in a hybrid model), I think we all have to anticipate changes as we see more cases and community spread. And, of course, many employees are parents, so employers will have to address those situations in some way. I continue to believe that if your goal is to have employees (or some employees) back in the office, you should set an anticipated return date and continue to evaluate that return date and let employees know.

FIA MAGAZINE | NOVEMBER 2020 16