Return to Work Virtual Toolkit Part 1 – Preparing to Reopen: How to Smoothly Transition Back to Work

Date: May 14, 2020
Okay. Well, good afternoon and good morning, to those of you joining us from the west coast. Welcome to McDermott’s session number one on the Return to Work Virtual toolkit for Employers webinar series. I’m Mike Sheehan, the global chair of McDermott’s employment practice, and I’ll be moderating each webinar in the six-part series taking place on Tuesdays and Thursdays at the same time. We know that the COVID 19 Pandemic has put unprecedented strain on organizations of all sizes across all industries. And as our focus shifts to return to work issues, the new normal is leading some employers to take extreme and even unnecessary measures. This series, this six-part series is intended to take a deep dive into all of the issues at stake and to give you the tools necessary to bring actionable and practical solution for your organizations. Now, before I introduce today’s panel, let me get some of the logistical details out of the way, okay. If you have any questions during the webinar, please submit them using the Q&A feature, and we will address as many of them as we can before we conclude today. We have a busy agenda today. So if we’re unable to answer your questions, we’ll be sure to follow up with you directly. A link to the presentation recording and a copy of the slide deck will be available to you after the webinar. This program also offers CLE credit. Those who participate in the full program will receive a certificate post webinar. It’s important that you fill out the post event survey that will be emailed to you in order to include your required information for CLE. For those of you in New York, I’ll read out a validation code later in the webinar, towards the end, that you should write down and then enter into the post event survey. For additional information, and to stay informed of the latest developments, please visit our resource center at Now, without further delay, I’d like to introduce our panel. We’ve got with us today Ron Holland, partner in our San Francisco office. Carole Spink, a partner in our Chicago office, and Emory Moore an associate in our Chicago office. And today we’re going to be focusing on transition plans for employers planning to reopen. What I’d like to do is go through what we’re going to be doing in the other sessions, starting next Tuesday-Thursday and then the following Tuesday-Thursday. In session two, we’ll be talking specifically about preparing your workplace. Session three, preparing your workforce. Session, session, I’m sorry, session four, preparing your responses. Then, in session five, preparing for the unknown. The known unknown. And six, of course, preparing for battle and the litigation that undoubtedly will be coming out of all of this. I’d like to hand it over to Ron, but before I do, we’re going to have a little question for all of you, and it’s going to pop up in just a moment. Does your company currently have a return to work plan in place? If you can answer this, one of these three answers. And Ron will be, will be getting these answers in real time. And I’d like to hand it over to you, I’m sure you’re going to have a lot to say about the answers as well. Take it away.

Thanks very much, Mike. Appreciate it. Here are results. 35% of you have a written plan. 29% of you have a plan, but not a written plan, and 37% of you don’t have a plan. That tells us that this is a timely presentation. It also tells us that some of you are getting ready, obviously, to reopen. Essential service businesses have been open for some time and you’re getting ready to modify your plan. Other businesses are getting ready to open. This truly is the first step, developing a transition plan and creating a transition team. Now, you need to develop that transition plan because we need to figure out how are we going to comply? One, how are we going to comply with the federal law, the state law, the local ordinances? Some which are consistent, others at times conflicting and certainly most of the time, confusing. And also, most importantly, how are we going to develop a plan to protect our workers, protect the safety of the workplace? And then finally, obviously, preparing for any anticipated battles and likely litigation to follow. Can I have the next slide, please?

So, when you’re looking at developing a transition plan, we’re looking at developing, not only a plan but the team, right. We need to figure out who’s going to be on that team. And it’s going to be different for everybody. Certainly it’s going to be different based upon your business, based upon the size of your business, frankly, based on the geography and the location of your business. But what’s important is, as you’ll see in bullet point number one, cross functional stakeholders. Fancy way of saying, let’s get everybody’s perspective. We need to get all sides of the business and that perspective and that input in order to implement the best transition plan possible. One size does not fit all. You’ll hear me say this time and time again. One size doesn’t fit all. Every transition plan is like a snowflake, right? It’s all slightly different. But here’s a good list of the possible stakeholders that are going to be included with regard to your creation of your plan and the creation of your team. Human resources. Easy one, right? Human resources has possession of the employment policies that govern your business, in fact, likely created those employment policies. Communications. Most of the time, human resources and communications are going to overlap if you have a communications group or somebody who speaks for the company. That’s certainly, companies that are exposed to public scrutiny and then customer facing businesses are often going to need a communications person to work hand in hand with human resources to get the right tone and the right message when necessary, both to employees internally, and then to the public externally. Operations is certainly a key component. We like to say that the law and labor laws shouldn’t dictate your operations in your business. Operations should dictate, and we will figure out how to help you comply with all of the laws and regulations that govern your workplace. But operations is going to be a key stakeholder because we don’t want our plan and our transition plan to unduly hinder the opening with a continuing expansion of your business and your company. It’s already been hindered by the various local ordinances and state ordinances that apply. Obviously, you know, we need to say legal needs to be involved, right, both in house and outside counsel. If you have in-house legal counsel, going to be a very important stakeholder for purposes of compliance. Outside counsel, of course, if you need to use outside counsel, is going to be just is important. We’re going to get a little more detailed on the strategic use of legal counsel, the attorney client privilege in the work product doctrine because these plans that you’re creating and these teams that you’re creating are going to create a lot of documentation, some of it necessary, but some of it unnecessary. And we don’t want that documentation. We want a nice straight line of necessary documentation and not an expansion of that documentation, because what that does is it creates undue documentation which leads to discovery and the exposure of the documents on the back end if you’ve got litigation. Upper management, but let’s skip over upper management for a second. Facilities/maintenance. Overlooked sometimes, but facilities/maintenance of keeping you’re your, your facilities operating, keeping them sanitized and keeping them clean. Obviously, a very important stakeholder in the mix. Upper management, like legal counsel, is a strategic decision. You want upper management ownership of your transition plan, but how much daily interaction do you want upper management to have with your transition team? Again, part of it is ownership and accountability. Part of it is looking down the road at anticipated litigation and those questions that you get, and the questions regarding who are the key witnesses and depositions to be taken. So, for those of you with the C suite, you need to really strategically decide what the interaction of C suite folks are going to be, upper management are going to be, not for ownership purposes because you want that, but certainly for down the road litigation purposes and strategically avoiding those day long depositions that could ultimately come. Finally, another strategic question is employee input. Now, we’re certainly not recommending that you have employees on your transition team. There’s a lot of privileged information there are a lot of critical questions that are going to be asked and answered in this confidential conversations. But you need to, obviously, listen to your employees. You may not want to take temperatures. You may not want to do that at your facility, however, excuse me. However, you may hear that from the floor. You may hear that from your employees. You may hear that that makes them feel safe. You need to be responsive to that, obviously, right, not only for safety purposes, but also for morale concerns. You want morale to be high during this pandemic. We’re hearing, not only from around our clients in the workplace, but even from our own workplace, maintaining morale is key for production and efficiency going forward. Can we have the next slide, please?

How to effectively use legal counsel? The question. That’s a question that applies to your business on a regular basis. But here, there’s even more, there’s heightened scrutiny on effective use of legal counsel. Now, I’m not going to get into a big discussion of the ins and outs of the attorney client privilege. You’re all familiar with the privilege, and the fact is that the privilege is not complete. Simply creating an email and copying your lawyer in-house or outside counsel is not going to necessarily cover that communication, if it’s strictly a business communication, right. We need to understand how to use counsel. Obviously, using counsel for compliance purposes, for monitoring legal landmines and obstacles is going to be very important. But as I was talking about earlier, the documentation emails that are going be created are something that we need to be mindful of because eventually, if you end up in legitimate or even frivolous litigation, a lot of that documentation is going to come to life. One of the critical concerns that I have is the draft plan that you create. The back and forth of what is good and what’s bad as part of your plans. It’s certainly been our recommendation that telephone conversations and conferences be held, and then those draft plans be created for purposes of sending it to your in-house counsel or even your outside counsel for legal review. Trying to keep those draft plans to a minimum and not creating repeated modification after modification after modification. As you can, as you probably realize, some things in it one moment, some things out at one moment, and luck will have it that what you took out is something critical for a piece of litigation down the road. Now, obviously, you can’t protect against everything you need to be practical and create these plans in the real world. Be mindful, though, that these iterations of plans, if they’re not protected by the work product doctrine or the attorney client privilege, could be a concern later. What are the takeaways here, right? Be careful with your paper trail. You need to be careful with your paper trail. If you’re taking notes or minutes, let’s have those created for legal counsel. Let’s have them submit it to legal counsel as summaries with an effort to mark them and keep them privileged. And then finally, draft plans are more likely protected by the privilege if they’re prepared, it says for outside counsel, that’s, that’s a shameless pitch, isn’t it? It’s not just outside counsel, its in-house counsel as well. Whichever counsel, if you’re preparing them for review by counsel, you’re going to have a better shot of keeping that information privileged.

Hey, Ron?

Yeah, Mike. So, I would say that just about every company says the health and safety of our employees is number one. And I’m going to bet we’ve got close to 800 attendees here for today’s program, I bet every one of them fall in that category as well. The health and safety of our employees is number one. So, with your advice about the attorney client privilege and encloaking all of this in privilege, am I right that what you’re getting to is, though, that you do want to have a plan, a plan that you can show the world as well as, you know, one that will support that, you know, that theme, the health and safety of their employees is number one?

Mike, that’s exactly right. It’s, that is what we’re recommending, and it’s a really great question that transitions us to this slide nine here, we’re not only advocating or encouraging written plans, but in some cases, and I’ll get to it there in the bullet point three, many of the states, during their modification of their shelter in place borders, are requiring written plans and in some cases even requiring the written plan to be submitted to the local municipality or to the state government for approval, or at least lodging with them. So the state or the local, the local ordinance can check that box and say, we’ve done what we’re supposed to do. But let’s head up to a bullet point one, and that’s why do you need a transition plan? You know, it’s very clear that this is not going to be short-term. It’s going to be short-term and long-term, in fact. We’re going to see peaks and valleys. There’s a San Francisco journalist, and you might have heard me mention this in one of the early webinars, that’s referred to it as the hammer and the dance. The hammer is this hammer of shutdowns and sheltering in place and rules requiring certain restrictions on what you can do with your business and what must do for your employees. And we’re going to see modifications of that. And we are seeing it right now. We’re seeing the dance, right? We’re all in the middle of the dance. And what we’re doing is dancing in measures. We’re coming out, little by little, as the ordinances and, and regulations allow, and reenergizing or restarting our business. And so, you need a transition plan that’s adaptable to these peaks and valleys, and you need to be prepared for the next hammer to come down. Because we do expect that we’re going to sort of dance out a little bit, and then as things spike, as many of the scientists are predicting, we’re going to see a hammer come down again, and we’re going to have to retreat, and then we’re going to dance back out. And we’re going to see this go on for some time and in some cases, certainly, permanently. As Mike referred to earlier, some states are requiring written return to work plans. We are certainly advocating that plan. You want to have a written plan. You want to have a written plan for many reasons, right? First, you want a written plan, so your employees know what you’re doing. What, so they know what you’re doing to keep them safe. You want a written plan, so the public knows what you’re doing to keep employees safe. And you certainly want a written plan in the event that there’s a complaint regarding safety or discrimination or application of your plan to demonstrate as a defense in any sort of complaint or litigation, that this is a written plan that applies to everybody. And you need to expect that that written plan is going to receive scrutiny along the way. Now, as you can see. Yeah, Mike?

Ron, a number of companies have made their plans public already. You, I know you’ve studied them, so has Carole and Emory. What do you think of some of them?

You know, all of you have probably read about Tesla in the news. Who doesn’t read about Tesla on a regular basis? And, and, and, as you know, Mr. Musk has sued the county for reopening. It seems to be resolved right now, but as part of that, being represented by smart lawyers, Tesla put together at 38-page plan. 38-page return to work plan. It’s posted online, and frankly, you know, if I, I certainly didn’t write it or have any input. But it’s impressive, and it’s an impressive plan. Everything from inside the facility to recommendations on how to get to work. There down in the Silicon Valley, shuttles out here, I’m in California, shuttles out there back and forth to work. The Teslas and the apples and the Googles of the world are fairly commonplace. They are social, they’ve got rules regarding their shuttles, when to use them, social distancing, down to markings on the floor of social distancing and what’s required. They knew that they were going to battle to get their business open. And frankly, you know, I think that the 38-page plan is impeccable. I mean, they hit it out of the park, so it’s certainly something to take a look at. Apple’s created a similar plan. Apple’s got a partial exemption from the county there to open its essential services. And that’s why you may have read that they’ve opened their Cupertino campus. Likewise, their plan is available online. They’ve done a fantastic job as always. Back to the bullet point number three. California, you know, which I’m most familiar with, but we’re looking at this nationwide, strongly recommends site specific protection plans. Down to the construction industry, where if you’re a construction employer, you need a plan for each construction project, not just for your company as a whole. Restaurants are being treated similarly. Michigan’s requiring essential businesses to develop preparedness and response plans as well. And so, it’s always been our advice that developing these plans in writing is going to be important, not only for transparency and education of your workforce, because you want him what is to get it right, and you don’t want to get into disciplinary situation, but they’re important because the trend is, as states reopen, that these written plans are going to be required. Finally, obviously, I’ve covered this already, it allows for effective crisis management, clear procedures, delineates responsibilities, right, and provides defenses to potential litigation. Can I have the next slide, please?

So, what are the team’s objectives? Some of this is somewhat redundant because we’ve covered this, but your objectives are ongoing. Objective number one, obviously, is to develop the plan to resume operations with the dual goal of protecting employees and managing the risk, managing your litigation risk. As I’ve mentioned before, developing an external facing plan for employees in the public is going to be critical. But an internal facing plan, not only guidelines for your managers, but an internal facing plan of what the goals are of the specific plan. Whether you, whether you the document is written as a privileged document or whether it’s written is a public document, assume that both documents are going to end up public at some point because you might want to use some of the things that you’re putting in place, or the advice that you’re giving managers, to defend against yourself, to defending against litigation in the future. As litigators, as trial lawyers, that’s the way we think as we create a document, what does this document look like to the public? What’s it going to look like to a judge? What’s it going to look like to a jury? Everything that you create is a potential exhibit for disclosure. And you need to keep that in mind, especially in a time where creating written documentation to support your protocols is not only critical, but, in fact, in some cases required. Oversee the implementation of the plan, obviously. Designating individuals, specific individuals and stakeholders is going to be important. Giving everybody the responsibility is really giving nobody the responsibility, because everyone will approach it as it might be somebody else’s job, or you just might have the proverbial too many cooks. And so, funneling that responsibility to specific stakeholders, we think, is going to make these transition teams more successful. Monitoring compliance with the plan from a legal perspective, especially as they modify from time to time. You see modifications on a daily basis, both at the federal, state and local level. That’s going to be critically important. And then finally, your final goal is we want to keep employees safe. That’s our message. And we want to reduce missteps to prevent and minimize litigation in the future. With that, I’m going to turn it over to my partner Carole Spink. Although—yeah, I’m going to turn over to Carole. Thanks.

Thank you, Ron. So I was looking at some of the questions that folks have been asking, and actually several of them dovetail really nicely into what I’m about cover. So, just taking a step back on the example plans, one of the questions, several questions from the audience is, regarding health questionnaires, and whether, how often do you ask employees to fill them out and whether there any examples out there that are already available. So a best practice would be to certainly ask your employees to respond to health questionnaires. That way, you can, employees can self-monitor each day before they enter the workforce to determine such things as whether they’re feeling ill, whether they’ve come in contact with anyone that has COVID 19, whether they’re running a fever, etcetera. That’s strongly recommended, and an easy way that you can, again, meet some of those safety obligations you have as an employer. So, that’s a, that would be one part of the package, so to speak, that we would strongly recommend, is that you do ask employees to fill out questionnaires each day before they enter the workforce. We certainly have some examples that we have prepared for clients. I, you know, Ron mentioned Tesla’s plan. Tesla has one in, in their 38-page return to work playbook, so you could check that one out. And again, it has things such as, you know, have you, you know, are you experiencing those symptoms that the CDC has identified with respect to COVID? So, hopefully that’s a good resource there. And then one of the other questions we received is, which I will cover, it’s about specific plans. And what are the transition plans? What, as you start to prepare to return to work, what are those transition plans going to start looking like? And so some of those questions we’ve seen, I’ll address those as we continue on. So, what exactly is in a transition plan? So, as Mike and Ron mentioned, you know, safety is going to be your number one objective of your plan. So, you’re going to want to think about, what measures can I take, and should I take to protect my employees and protect my third parties, customers, service providers, etcetera, that enter your workforce? And such things as local laws and local ordinances may, and local orders, may require you to actually specifically implement such procedures such as social distancing. You may have to rework the workforce configuration. You know, PPEs, masks is a big one. So, all of those types of requirements that, if they’re not necessarily mandated by a government order that is in for each location, they are certainly something that you’re going to want to strongly consider as part of your safety aspects of your transition plan. And so, again, this is such an important aspect of the transition plan that actually next Tuesday’s program is going to specifically go and take a very deep dive into those, these particular issues and discuss some of things we’re seeing in the market. So, stay tuned for sure, I think that one will be really extremely helpful for folks that are grappling with this. So, in addition to safety, you’re also going to want to figure out okay, given that I’m going to have these safety implement, things I’m going to have to implement, now, who am I going to bring back? And so, this is where you’re going to want to start thinking about, what is my workforce going to look like once we reopen? And so, who’s going to come back and who may be, continue to remote working. So, there’s going to be a number of factors that are going to come into this. One is safety. So, if you have a workplace and there’s only so much space and you can’t necessarily configure the workplace so that everyone is, you know, the mandatory six feet apart from each other, that may, you know, drive the number of employees you actually bring back, physically, into the workplace. Business reasons. Perhaps you did a furlough, and as now you’re returning to work, there’s just less of a business demand. And so, you may not be bringing back all of the, of your workforce, simply because there may not be that immediate need to bring those folks back. So, there’s lots of different considerations here. Things like, you know, who, who is my workforce and really diving into location. So, that was one of the questions we got, was whether we need to look at this as a company-wide basis or as a location-wide basis. It really does need to be location-specific, and possibly even building-specific. Because you really, it’s an opportunity, really, to look back and take a second look at what your workplace is given our new COVID 19 world, at least for the near future. So, you know, do I really need everyone coming back into the workforce? Can some people continue to remote work? For individuals that must come back, how can I keep them safe? Things like staggered shifts that, that, those are, you know, easy ways that you can limit the number of employees that are in the workplace. But lots of different ideas on that. When you’re figuring out the staffing piece, you will want to keep into, keep in mind timing because you may either be required to notify individuals by an order. Or, you’re going to practically need to notify individuals about your return to work plan because you’re also going to need to figure out if some of the folks that you’ve identified that you do need back in the workplace, what’s their situation. Are they able to return? Are they actually experiencing symptoms? Or are there other reasons why they may not be able to return? So again, planning to try to figure out what those numbers are going to really look like. And then, of course, what you want to also be very careful when you’re figuring out the staffing piece is to be very mindful to try, to the extent possible, to use objective factors when trying to figure out who those individuals are going to be that get to come back to work. You know, we’ve heard a lot about COVID affecting older individuals or individuals with preexisting or other conditions as being particularly susceptible to catching the virus. Or if they catch it, it’s going to be, you know, much more of a drastic impact. The knee jerk reaction may be, oh gosh, we want to protect those individuals. We don’t want to bring those individuals back into the workplace. Which very well is probably from a place, a good place of trying to protect, and again, safety. But the EOC has actually addressed this in their guidance. Employers are not to make these types of decisions based solely on someone’s protected category. So even though your heart may be in the right place to try to protect the older workers, you can’t exclude older workers from coming back into the workplace unless there’s an objective reason to not bring that person back. And age cannot be one of those reasons.

Carole, if I can. I was thinking about this earlier. It’s sort of a conundrum, right? You can’t, you can’t require, necessarily require them, but if they want to stay home, then there’s a question of the accommodation kicking in in the interactive process. And so, you’re sort of caught coming and going there, in the middle. And what the employee wants to do if you’ve been, if they’ve been able to work remotely, is going to be one of the primary factors when it’s, when it’s weighed in determining what, what actually happens, what the end result is. So, the employee ends up with a lot more control if they’re in one of those categories than they normally would.

Absolutely, yeah. And that was actually going to be my next point with respect to individuals that have a preexisting condition. Just because they have a preexisting condition does not, per se, mean that the employer should exclude them from coming back. But beware that they more likely will, may request, as Ron said, a reasonable accommodation, and you will be, then, subject to the reasonable accommodation process that, you know, as employers, you’re used to doing as a normal, ordinary course of business. So, the other thing to think about here, is what happens when and, if, if an employee is identified, the kind of key individuals that need to come back right away, they can’t be remote working, so you reach out to them, let them know the plan, and then they say that, you know, I’m just scared. I’m not coming back to work. You know. And so, what are you going to do about those scenarios when individuals say, yeah, I just, I don’t think it’s safe. And I’m hearing everything on the news, and I just don’t think that you’re doing enough. And so, you need to be prepared for those, kind of, hard responses that you’re likely going to get. You could, of course, want to consider what, you know, you’re going to want to listen to your employees first and foremost. And if they have a, if the circumstances are such that it would necessitate an accommodation, then, of course, you need to go through the reasonable accommodation process. But again, be prepared for how you’re going to address those scenarios when it may be just pure fear alone that the employees going to refuse to return. So, be prepared for that because you do want to have a fairly consistent approach because you also, again, want to be very mindful of disparate impact discrimination type liability. So the other thing is, if you are a unionized workforce, of course, you’re going to need to consider recall and any other type of obligations in your CEA. And again, this particular issue of staffing and employees and the scope of employees and how to address employee issues, that will be addressed in the session three of our program. So, that’ll be next Thursday. The next slide.

So here, the last, kind of, big picture thing that you need to keep in mind when you’re developing your transition plan is, what is my timeline? And here, you know, we’ve, we’ve cited the US Chamber of commerce. It’s a pretty good starting point for, kind of, giving a big picture layout of the state. It’s limited, it’s a starting point. If anyone in the group has read any of these orders they’re very long, they’re very clunky, they take a while to get through. That’s the state orders. And then you have, remember, it’s not just the state, but the local. You may have a county order or a city order. So, for example, here in Illinois, we’ve got an Illinois order, and then we’ve also got, I’m, I’m working and living in the city of Chicago, so, we also have a Chicago order. So, there’s a lot of different things keep track of. And again, they’re not exactly easy to necessarily even find when you’re looking for them, you know they’re there and finding them can be a challenge. And then, of course, reading through them, again, they’re clunky. So, you know, to the extent that, you know, just keep in mind that there are those different levels of sources of obligations. And then you’ve got, of course, the, kind of, recommended industry specific regulations that you may govern your business. And then, of course, you know, just practically speaking, you’re probably going to want to look to see what your competitors are doing, etcetera. So, there’s a lot of different sources that you’re going to want to look to when deciding the timing aspect. And it’s likely going to be by location. It’s not going to be a one size fits all. You know, we’re going to, you know, open up the entire company if you’re in multiple states, you know, on June 1. I mean, that’s likely not going to be able to work depending on where you’re located. So again, and I mean, if, you know, I would recommend leaning on, you know, outside counsel. Shameless plug. But, I mean, we have a whole team in our employment group, we actually have a whole dedicated team that’s tracking this and working, you know, constantly updating. And again, it’s a lot of work, so I can, I can certainly appreciate that this is not an easy thing to navigate, but, you know, obviously we’re here to help on that with, with that respect to kind of translate all of those various obligations.

I’ll add to that so that it’s not shameless when Carole says it, okay? It was February 27th when, when I spent an entire day answering questions about COVID in the workplace. All unplanned, unscheduled. When, you know, what I planned to do that day got kicked to the next day. And, I think we recognized that this was going to continue, that this was going to be something that was going to be important to our clients. And Carole, along with several other partners, spent the weekend beginning to add the FAQs to the workplace, really studying the issues from the ground up. And then we added to the team Ron and Emory and a number of others. So, it may seem like a shameless plug, but we really are here to help. We think we’ve over the past two months built up quite a bit of understanding and knowledge as to how to navigate these issues. So, it is good to, every now and then, to lean on outside counsel. Go ahead, Carole.

Thank you. And when you’re thinking about this, it’s almost like you’re looking back and you’re looking at your workplace, location by location, and you’re also looking at the workday. So, I mean, these are things that we take for granted, like, you know, okay, you know, most employers, people come to work 8:30 to 5:00 or 9:00 to 5:00, and you know, you have kind of your usual way of doing business, which probably worked for years. And so, you know, that may not be practical. Particularly, you know, as businesses reopen and in the near future, when we do need to meet these, you know, social distancing requirements, etcetera. So, kind of thinking outside the box and thinking about what is the workday look like? You know, does everyone really need to come in at 9:00 in the morning? How do people get to work? You know, I mean, you know, that may be very different if you have, you know, a location that’s near a large city versus another location where there’s plenty of land and there’s big parking lots, you know? So those locations, you know, people may be able to, you know, take driving their car by themselves, to work and park and have socially distant parking. You know, there might be plenty of space. In Texas, you know, everything is bigger in Texas, and so there’s lots of land, right? And whereas, in Chicago, you know, or New York or San Francisco, you know, that, that’s going to be a challenge. Public transportation. I mean, if you listen to the news about what New York’s going to do with the subway system. It’s, it’s very challenging. So thinking again about the workday and the employees and just things that we kind of take for granted and how that may or may, may be affected, given, kind of, our new situation that we’re going to be facing as you look to reopen. And then finally, just the last point is suppliers, you know, making sure that you have, you know, your janitorial staff for cleaning. You know, one aspect of almost all of the state orders is that there’s increased hygiene and cleaning. That’s a no brainer thing that employers can do. You know, making sure that your service provider, your janitorial provider, your maintenance, those folks are able to meet that challenge. I’m assuming those businesses are probably very happy to do that. But, you know, just making sure that those, kind of, third-party providers are available so that once you do reopen, you’re, you know, as ready as you can be. So, next slide.

Now we’re going to transform to the last portion of our presentation for, kind of, our begin—our starting of our series is transforming your policies. So here, this is an excellent time to really go and look at what your policies are. Because as Ron mentioned, you know, one of the defenses against litigation and also just a have a smooth transition, is having appropriate policies in place, both from the employer’s perspective and the employee’s perspective, you know, in order to return to work in, hopefully, a safe manner. So next slide.

Carole, I think now we’re going to, we’re going to go back to the audience. We’ve got a question to poll with.

Oh, cool.

And the question is, since the start of the COVID 19 pandemic, has your organization done an audit of your employment policies? You’ve got three answers there. Please pick one and we’ll be, we’ll be looking at this in real time. 53% no, there, Carole, what do you think about that?

I kind of expected that, to be honest with you. I mean, it might not be something obvious, and so that’s great for right now, now is the time. So, you know, if you haven’t done it yet, don’t worry. There’s time. And that’s why this series is so great to really arm you with the tools you need to have a successful reopening. I would suspect that some of the folks that might have answered yes might be businesses that have had some aspect of essential workers in place. So, you know, probably have had to deal with a lot of these type of issues on, maybe on an ad hoc basis, probably on an ad hoc basis, as everything has developed during this whole pandemic. So, my guess would be a lot of the folks that have, have addressed it probably have reopened or have always had some aspect of the business being open due to essential business. So again, the good news is that this is, this should be on your list of things to do before you reopen, is to one, look at what you have. If you haven’t done just a general housekeeping review of your handbook and your policies in a while, this is a great time to do that to get your policy house in order. But then also, looking at it with respect to COVID. And so, really going through the handbook and thinking of the policies that you have that may need to be updated now due to the pandemic. So things like expense reimbursement policy, things like reporting of complaint procedures. Does your complaint procedure contemplate complaints regarding, you know, concerns in the workplace on safety? You know, drug free, drugfree workplace. I, I’m not sure how that one, I mean, that’s a really good one to think about especially if you have a significant number of employees working from home. And thinking about whether that policy would address the fact that, you know, most of, if you’re in a situation where most of your workforce was in the office. So, therefore, you know, it would be kind of obvious for someone to come to work after lunch, having had a couple, to, you know, they’re now all at home. You know, what does your, does your policy address those issues? The other thing you might want a temporarily pause due to COVID 19 is that maybe if you have a strict no call, no show policy on the attendance, you might want to give some flexibility right now on those policies, because for safety reasons and to be a good employer, you’re going to want to strongly encourage people to not come into the workplace if they’re feeling ill. You want people to feel comfortable and not to just show up because they’re afraid. You know, I just need to show up or I’m going to lose my job. You know, so you want to think about possibly temporarily pausing those types of policies for this specific pandemic. So, that would be the first point. And then, as you go through your policies, you may realize, you probably will realize, that there are probably some policies you don’t have. Like, again, this entire pandemic has raised issues and questions that we all have grappled with that, you know, most, I can’t, not in my career have I ever addressed. So what new policies might you need to implement? So, probably the biggest one that comes to my mind is telework. Typically, if you have, you know, a situation where, you know, for like, for example, for us. From a law firm, you know, we’re used to, you know, besides, you know, partners, or associates traveling for court or for visiting clients or meetings, you know, most of the time, we’re in the office working as teams, collaborating, etcetera. You know, but that being said, we’ve had a lot of great success with remote work. So, but that was never contemplated. You know, we’re a law firm. We come to the office. So you know, what is the workforce going to look like when you return? How long like that be? Is it going to be permanent? Is it going to be temporary? But chances are you probably have a significant higher number of individuals remote working. And because of the social distancing and safety considerations when you return to work, such a staggered working or, you know, almost all of the orders that we’ve looked at have strongly encouraged, a couple even mandated, remote work where possible. So, you know, this is something that’s going to continue for the near future. So, you know, you might want a telework policy at this point. Go ahead and, you know, put into place a policy based on your particular circumstances.

Carole, I’ve got a couple, couple keen insights from the audience here on changes that you might need to make as returning to work. For example, many employees might need to be reminded to wear pants to work, since they’re no longer on Zoom and now they’re in the office, right? And I got, I’ve got another one here that says that there will be a suspension of the airport rule. You know that in the airport, you know, it’s always cocktail hour, and now it’s back to office hour. I just thought I’d add those in there.

No those are great. Seriously, though, those are great examples. I mean, really thinking about, you know, again, the workday and, you know, symptoms screening. I mean that, I’m sure most, most companies don’t have policies on, you know, some type of screening. You know, temperature taking is a huge hot topic right now. Next Tuesday’s webinar will go and take a deep dive into that. Employers are kind of, you know, it, it is interesting, that situation. I mean, the EOC has said you can take temperatures. That said, someone’s temperature at the time that you take it, whether they take it themselves, which is recommended, or the employer take it, you know, it’s only going to tell the temperature at that time. And, as we know, or, the little things we do know about COVID, is that many people are asymptomatic and don’t necessarily have a fever. So it’s of limited use. That said, you, you know, some orders are strongly focused on temperature taking. And I think it’s an easy thing to check off the box if you’re going to consider it. Again, probably better to have employees do it at home when they conduct their self-assessment, as opposed to, necessarily doing it, when you, someone’s standing at the front door taking temperatures. But maybe that’s what’s necessary. Each employer is different, and your considerations are going to be different.

Carole, on temperature taking, I know we’ve debated this, and a number of us, we could probably have a separate program just in temperature taking, you know, pros and cons and argue it out. But isn’t one of the other issues, aside from the fact that it really isn’t indicative of anything and it and it’s, you know, there, there are some troubles, but isn’t it also, doesn’t it go to the appearance of things, both to the public and to the employees that you’re really taking the monster of measures?

Yeah. And that is kind of where I was going with the check the box. It’s something that you can do that you can point to, this is one of the things that we’ve done to show that we are, you know, meeting our obligation to have a safe workplace. And employees may just, going to my earlier point of what are you going to do if employees say I just am too freaked out, I’m not going to come to work, I’m scared. You know, that might go a long way to making them feel comfortable. It also may be your competition’s doing it. And so you look like the bad employer that doesn’t care if like all of your competitors are doing it. So, I mean, there’s all these types of considerations on temperature taking. So again, you know, you prob—but that said, whatever decision you make on that you probably don’t have a policy on that. So, you definitely will want a policy on temperature taking, whether it’s mandating that employees take their temperature every day before reporting to work as part of their self-assessment, or, you know, signing an acknowledgment form that they understand that a condition of entering the workplace is having their temperature taken.

Carole, if I can just jump in quickly. Just bringing us back to the policies, one of the overlays that we have here is, remember what, there’s a new workplace that’s been created and it’s the home, right? It’s, it’s the home office. Some of you may be used to working from home from time to time, but we’re going to see that certainly much more, and expanded to a different type of work then we’ve seen in the past. And so, looking at your policies with regard to your traditional offices is important, but taking a look at each and every policy going through and thinking about the fact that there’s a new workplace and it’s each individual’s home, which looks completely different and you’ve got no insight into what that is and what that environment is, is what you need to do when you’re recrafting these policies. Because, Carole, I see that you’re going to get to, you know, having your policies have been creating sort of an addendum or a supplement for that purpose. Much like we would do, you know, for employers that operate nationwide and then have California as a separate supplement because, you know, we’re so special. But that’s, I think that that’s really important to think of it not only for purposes of the pandemic, but for purposes of long-term what the new workplace is going to look like.

That’s a perfect segway, and that’s actually going to be my last point. Is that regar—you know, when you realize what you have as far as what policies you either need to revise or new ones you need to implement, you know, how are you going to do that? Is it going to standalone policy or are you going to do an addendum? A lot of companies have state addenda, Ron mentioned California because we almost always have a California addendum to employee handbooks. But, you know, that might be a way to, you know, have all those policies and addenda. So, therefore, you’ve got your main handbook, and then you’ve got your addenda, which will be easier to update as the pandemic continues and business needs and situations develop. So, next slide.

So I think now I’m going to turn it over to Emory, and he’s going to talk, in more detail, about some other specific issues, particularly sick leave.

Thank you, Carole. And as a preliminary matter, sick leave is a very broad issue, and we’re going to cover that in great detail in session four. But I think there are two critical issues we should discuss now. Number one. There’s a growing web of federal, state, and local laws requiring employers to provide paid sick leave for COVID 19 related reasons. And a lot of those laws are similar. A lot are very different. Some may apply to some employers, some may not. For example, the Family First Coronavirus Response Act, which is a federal paid sick leave program, won’t apply to you if you have fewer than 500 employees. But other state and local laws have been created, which provide the same benefits and apply to a broader group of employers. So, it’s imperative that employers do a few things. Number one. Review these laws, that goes without saying, and determine whether they apply, and that’s where outside counsel can help, who’s been looking in the weeds in these laws as they develop over time. And I love that, that first bullet point because I do think this is a spider web and it’s hard to track all these different things. And then three, importantly, consider how those laws interplay with your current sick leave policies and whether you need to make any policy changes. For example, if a pay sick leave policy applies, you may need to create an entirely new policy. For example, in the addendum we just discussed, you may need to have something in there, specifically applicable to, say, San Francisco COVID 19 paid sick leave. And you need to understand that so you can put that in there. Two, you may also want to change your standard sick leave policies depending on what additional benefits are provided by these various state, federal, and local laws. For example, some, some laws like the FFCRA, which we just talked about, state that paid sick leave benefits are in addition to any sick leave benefits provided under your employer’s policy. And what that means is, just because you provide, for example, two weeks under the federal, the federal law, doesn’t mean you don’t have to provide whatever time periods you provide for in your actual policies. So, and I’m not advocating either way, but depending on the circumstances, an employer may determine that paid sick leave provided by various COVID laws are sufficient to cover the needs of their employees. And they may decide, to the extent that they can, that that standard paid sick leave policy shouldn’t be used for COVID related reasons. Employees with COVID related issues should go to that separate COVID related policy in the addendum. And like I said, when you’re considering whether or not you can make changes, you need to consider whether your policy allows you to make changes. Whether you have a collective bargaining agreement that limits your ability to unilaterally make changes. And whether there are state and local laws that actually allow you to limit the reasons for which pay sick leave can be used, and a lot of them don’t. Likewise you, you might have obligations under FMLA or any other family and medical leave loss or disability leave loss like the ADA. The second critical consideration when we’re talking about paid sick leave for COVID related reasons is more practical. We’re talking about staffing shortages because there’s a wide of availability of paid sick leave coupled with an ongoing pandemic. And we’re not really sure when that pandemic will end. So, there’s a great chance, or an increased chance, that a lot of employers will experience staffing shortages. So, it’s, it’s important that employers, I think, have a game plan should that situation arise. And that game plan needs to answer one question. If a substantial portion of our workforce is absent and we’re unable to spread the workload amongst the remaining employees, or you don’t want to because that’s going to cause you to incur more overtime expenses, do you have the ability to access the a temporary workforce? To answer that question, I think now would be a great time for employers to consider whether they have relationships with staffing agencies or on demand labor services, which is sort of a new service that’s been that’s, that’s popped up lately in recent years. When considering working with a staffing agency or expanding your use of temporary workers, I think it’s important to work with your legal counsel to strategize how to avoid or mitigate the risk that you will be deemed a joint employer. And what that means is, if you’re deemed a joint employer, you will be jointly liable with a staffing agency for any legal violations with respect to those temporary workers. For example, just to scare you a bit, a few years ago, there was a tech company that was forced to pay nearly $100 million to settle a class action claim brought by temporary workers. And what those workers alleged was that, even though they were employed by the staffing agency, the tech company treated them like employees and therefore, owed them benefits. So that, that, you know, issue there had a very large price tag. In fact, since we’re discussing paid sick leave, many of the laws expressly state that temporary workers are entitled to paid sick leave, and joint employers are responsible for providing that paid sick leave. So, I think when you’re when you’re dealing with staffing agencies and temporary workers, it’s easy to be lulled into, sort of, a sense of comfort that these are not your workers. That, the, you don’t have to comply with the laws or worry as much about or be as vigilant about complying with the laws with respect those workers. But that’s not necessarily the case. So you need to work and think through these problems and work with your counsels to think about that.

Emory, I would say that—sorry.

Go ahead.

I would say that this is one of those 360-degree employment opportunities, right? We all know that misclassification has been under incredible scrutiny over the last a decade and certainly over the last few years. And so, looking as there’s an uptick on reliance on contractors or staffing agency employees, there’s an opportunity to look at your staffing company agreements, your vendor agreements. Look at indemnification provisions in there. Look at the clauses that talk about what, whose responsibilities are whose, because we’re seeing this trend of an uptick in joint employer relationships, but the opportunity to delegate responsibility is between employers. And so that’s a real problem. Putting the pandemic aside, with the uptick in reliance on third party workers, that’s really going to be an area of scrutiny, I think, for all of our clients.

Exactly. So, I think, exactly like you said, Ron. Since, even if you’ve used staffing agencies in the past, now there’s, there’s a great chance you’ll be in using them at an increased rate, which increases the risk. So, like Ron said, one thing you can do is consider whether or not there’s an indemnification provision in the agreement with the agency. And that may or may not be the case. I can’t say it’s necessarily standard, but in certain situations you may have a situation where the agency agrees, where we’ll cover all of the liability for claims, certain claims brought by this employee. If you don’t have that provision, you can still take steps now to, sort of, mitigate that risk as much as possible. And I think the main thing you should do is focus more on vetting and evaluating the agencies you work with. And that can come in a number of ways. You don’t have the helicopter above them and monitor everything they do. But when you’re in discussions, you know, talking about an agreement with them, you should be asking a lot of questions about their experiences. Do they have experience with your particular industry? Have they been involved in any litigation in the past? What are their practices with respect to onboarding, off boarding, training employees? For example, there was another case where a large manufacturer used staffing agency for temporary workforce and there were deaths caused, as a result of poor training of those temporary workers. And there was joint liability between the, the staffing agency and the client. So, vetting ahead of time to make sure the staffing agency is doing what you would do for your employees is very important at this point in time.

Emory, it seems to me that, you know, while we can, while we can try to, protect against certain liability and shift certain responsibilities to the staffing agency, one that clearly remains with, either both or the main employer is safety in the workplace, right? I mean, you can’t, can’t shift that. But what about when the work, as Ron pointed out, is in the new place, it’s at home. The staffing, you know, the staffing overflow that’s been retained are teleworkers. How do we entrust that? And what are some of the things that we can do to protect, protect ourselves?

Right. So, actually, I want to save that for a couple slides because I think we’re going to go into the answers in detail. I think that’s a great question. And it’s on a lot of people’s lines, and if it’s not, it should be. So, can we go to the next slide please?

So, we’re talking a lot about new rules. We’re talking about the new workplace. The new reality regarding COVID 19. When you’re implementing these different rules, you’re going to need to redefine what it means to engage in this conduct. But first, I think we have some audience polling questions. Right, Mike?

We do. We’ve got two. Okay? So, the first question, and we’d like you to answer both. The first one is, what do you think is the severity of intentionally exposing others to COVID 19? Then the second one is what do you think is the severity of forgetting to wear PPE? We’ll have those, those answers in just a moment Emory. All right. You see that 87% have answered that the answer is severe for intentionally exposing others to COVID 19. And then we’ve got a little bit of a mix on the severity of forgetting to wear PPE. About what you expected I bet, huh Emory?

Exactly how I planned it. So, I think what this tells us is there are certain situations where we know what to do, right? We know what’s a serious violation. And there have been new stories. I saw one in South Dakota, one in Kentucky, about individuals intentionally exposing others to COVID 19. That’s a very serious offense. Those individuals have been charged with criminal, criminal offenses, and we’d expect it to be the same in the workplace. Maybe it’s a terminable offense. There are other situations where you have varying opinions amongst employers, amongst managers and supervisors as to is this severe? Does this warrant termination? Does this warrant a warning? What do we do here? And where you’re talking about discipline, of course, the key consideration is, are we being consistent? And are we being fair? So, one thing you need to do is figure out a set of rules regarding how to define what is misconduct in this new COVID reality. So, of course, not all violations are created equally. Some violations, like I said, warrant immediate termination. Some are more moderate, maybe discipline just short of termination. Others are minor and maybe you can just talk to the person, have a brief discussion if they, if it happens again, it progresses to the next, the next level. Where particular infraction fits on this scale, I think, will depend a lot on your specific operation and which COVID 19 executive orders and rules apply to your operation. For example, some, some places mandate and require you to wear gloves. Or you may be under an order, specifically applicable to you, to require employees who are for, say, manufacturing food, to wear gloves. And that is a serious infraction if they don’t, and you could face penalties. So, that could be a more serious situation in that environment than another environment where, you know, a person is, you know, just perhaps forgets to, to do it, and it’s not really a mandated rule. It’s just a best practice. So, I think as you create these new COVID related rules, defining the consequences, it’s going to be very important. Of course, I think you always have to build in room to deviate away from those defined disciplinary measures as deemed appropriate based on the facts. So that helps, that helps assure that the rules are consistently applied, and you don’t want a disparate claim. So, I think, some examples to consider. We just talked about a few and polled you on them, but a few I want to point out is, for example, one. How do you handle an employee teasing another employee for being fearful of returning to work during the pandemic? We’ve seen multiple lawsuits filed by employees alleging they’ve been bullied for expressing their fears about COVID 19. We need to figure out, how do you handle that? That could be a serious situation. Number two. I think failing to be responsive while remotely working, is a very serious concern for a lot of employers. It affects productivity mainly, and it may already violate your code of conduct. But you should think about and review that to determine, how are you going to handle a person who’s not being responsive? And you may not need to input, I’ve seen some, some policies where they input rules saying you have to respond within 15 minutes. Maybe that’s a bit extreme. I don’t know, you have to look at the situation. Maybe it’s a situation where it’s a progressive disciplinary type of thing. And you, you should build that into the policy. If it’s a first offense, okay. If it’s a second offense or it’s repeat, then it’s a serious offense. So, and I think on that note, when you’re dealing with unionized workforces, I think we need to be, you know, mindful that there may be particular collective bargaining agreement and bargaining obligations you should discuss with your counsel prior to making any sort of disciplinary rules or changing any rules. Next slide, please.

So we talked about this a bit. Ron, might, you mentioned it. This is a new workforce. We’re not returning to the same, I call it BC, the before COVID workforce. And in this upcoming return to work series, we’re going to…

Emory, we call it, we call it the post clean shaven workforce.

I was clean shaven until today. So, in the upcoming sessions, we’re going to discuss in detail a lot of the various aspects about what this new workforce or workplace will look like. Specifically, we’re going to identify the pitfalls there are for you and hopefully guide you on how you can avoid those pitfalls. But to close the session, I want to focus on the home environment which, which Ron discussed. And there are three items I think employers should consider when transforming their policies to fit that home environment. First. As employees continue to work remotely, some employers may need to take steps to ensure that they can continue to comply with wage and hour time requirements. The Fair Labor Standards Act, as a lot of you know, requires employers to keep accurate time records for non-exempt employees. Some states, however, also require you to keep those records for exempt employees. So, whether that applies or not, you’ll have to look at and determine with your council. But it’s imperative that employers, especially those, I think, who are not accustomed to large groups of employees working remotely, to assess whether they have the appropriate system in place to maintain accurate time records. Many employers ready utilize software and app-based timekeeping systems that, I think, meet this obligation. But others have implemented temporary measures, such as requiring employees to submit time sheets. But no situations, depending on how long this, this pandemic last, and I don’t think we know how long the duration will be, you may need to consider whether there’s a more long-standing practice you need to implement to create better a better timekeeping system. So, I think the sister to the time keeping, time tracking issue, is something Mike was mentioning. How do you police non-exempt employees to ensure they’re notworking unauthorized overtime? Or how do you police them in general, in the workforce?

Hey, Emory, I’m going to have to interrupt you for just a moment. We’re running close to our time, but we’re going to stay over so that Emory can finish and also so that we can answer a number of the questions that you put to us. So feel free to stay on. But for those who are looking for the New York CLE, here’s, here’s your code. It’s BLUE, B L U E 14. Okay, back to you, Emory.

Thanks, no problem. So to the extent that you don’t have a policy in place and we’re talking about, how do you police the working of unauthorized overtime when someone’s working at home? Which is a difficult, a difficult thing. To the extent you don’t have a policy in place already, we suggest that you implement a policy that specifically prohibits employees from working overtime without supervisor and management approval. And that policy should also make clear that when employees are off the clock, they are off the clock. They can’t answer their emails, they can’t answer phone calls. They can’t perform any work. It’s much more difficult to police that when they’re working at home than when they’re in the office or when they’re in the facility and you can physically monitor, you physically see them leave and go to the to the break room or leave the building for the day. Number two. And I’ll speed this up. Employers should consider how they will enforce meal and rest break requirements remotely.
So, depending on the circumstances, it may be best to establish specific break times and require employees to log out during those break times. If possible, you can even require employees to record their breaks. I think that’s a great option. And finally, employers should consider whether remote employees require certain equipment and whether the employer will be required to provide the equipment or reimburse employees for that equipment. So some states, for example, in California there are, there are some laws requiring employees to reimburse employers for expenses necessitated by their jobs. And the idea there is that employers are not allowed to pass off operating expenses to employees. So again, working with council here, I think will be important to make sure you’re complying with the various laws applicable to each of your operations. So with that, I’ll turn it back over to Ron Holland, and I think we’ll take some Q&A from the audience.

Thanks, Emory. Yeah, we have a couple, we have quite a few questions. We’re trying to call them into questions that we can answer that have been asked by quite a few folks who are participating. One had to do with the recommendation that we modify our policies and possibly issue an addendum. And should that addendum be temporary or should be more important, I mean more permanent. You know, I guess a recommendation would be, you need to write it and take a look at it, and then decide what your introduction or your disclaimer is going to look like. Frankly, these policies are going to likely be written for the long-term for remote work, the remote workplace, which we expect to last, certainly, way longer than the, than the acute crisis. But, writing your policies and modifying from that purpose. And then thinking about how you want to introduce them to the workforce is going to be very important. That’s a really good question. Another question had to do with your plan, your protocol/your policies, and do you want to put them say, on your company’s internet if you have one? If you expect your policies to be complied with by your employees, certainly, you need to get those out and you need to get them distributed. As far as your protocol is concerned, you know, that would be our recommendation as well. Whether you’re making them public on your internet or whether you’re distributed—distributing them manually and having employees acknowledge their receipt. We’ve created a variety of documents where employees are acknowledging receipt of PPE and new policies and modifications of policies. And we think administratively, that’s going to be terribly important. One other question I’d like to address before I turn it over to some of the other panelists is, there is this question regarding employees visiting client’s sites and then vendors visiting your own site. You know, we’re certain, we’ve certainly been recommending to clients that if you have repeat vendors that, if you have repeat customers that either you’re visiting or that you’re that you’re being visited by, asking them to submit their protocol to you. Asking them to submit what they’re doing is going to be really important. It’s demonstrating that the safety of your workplace, whether it’s in in your building or outside of your building, is very important to you. Also, if you’re going to have visitors, providing your plan in advance to those visitors that you see on a repeat basis is going to be important because you’re going to expect them to comply. Carole mentioned using third-party janitorial companies or cleaning companies. Well, you know, ironically, right, you’re asking them to come in and clean your business, but are you checking to see how clean they are at their business before they enter? What’s their protocol for their employees before they send them to you to clean your business? And what procedures are they going to maintain while they’re there? They’re going to need to comply with your procedures and your protocol, but what procedures do they have while they’re on your site? That’s going to be pretty important as well. Mike, Carole, Emory, turning it over to you to the extent that your, you’ve got additional questions from the audience.

I just wanted to add to the one, the answer that you were just providing there with regard to policies on, and say, clients or customers, especially. Vendors, I think is easier. Anyone coming on your premises, including your employees, you could, you could impose the same requirements and I think, to Ron’s point, get that out so that they know, and they don’t show up surprised or unaware or unprepared. But when you’ve got people in your in your workforce who are expected to go out to clients and customers locations on a regular basis, and what they’re doing doesn’t meet the standard of what you, you are doing, it raises a real conundrum, right? They may think what they’re doing, you know, addresses the minimum standards, but it doesn’t address your standards. So what do we do when one of our colleagues, one of our employees, says, well, I’m not going, all right? I’m not going because I, I know that it’s not is it’s not as safe as where we are here. It’s an interesting question.

Yeah, Mike. To just piggyback on that. We have a question regarding the daily wellness check and the administrative burden of having employees fill out a form. We’ve gotten great input from the audience. Some are going to an app, right, an app-based form that employees fill out on their phone. We actually have recommended to some clients to, instead of having it on a daily basis that employees sign off on, if you want to avoid some of that administration, there’s a little more risk associated with it, but having a, almost like a checklist or form that employees need to acknowledge every day just simply by entering the building. You know, here are the questions that you need to answer as you’re entering the building. And if you have any of these symptoms or if you answer, yes, let’s say, to any of these questions, either you can’t enter, turn back and contact HR or literally go directly to HR to limit their ability to enter the workforce. It eases the administrative burden of the document checklist or creating an app. There is a little additional risk to it, but it’s an easier thing, and it gives employee responsibility, and we need to emphasize that it’s not just an employer responsibility, but we need to put some of that responsibility back on the employees as well.

We’ve got, we’ve got a number of questions and we can keep on going. And Carole, Emory, if you want to join in. I’m going to, I’m going to address one. We actually had 45 questions so we won’t be able to answer them all, but we’ll try to pull out the ones that may be more broadly applicable. I’ve got a ques—we’ve got a question here. Should we make the transition plan public? Should he put it on the internet for all employees to see? I would say yes, I would say the plan, not all the, not all the collateral communications and drafts leading up to it, but the plan itself should be something that you want communicated to employees, that you want communicated to vendors, that you want communicated to the public. Something that you’re willing and able to stand behind. Something that adds complete shape to your, you know, your model, your mantra, the health and safety of our employees is number one. So, absolutely, it should be public and as public as could be. My view.

There’s a couple of questions about testing again. Someone asked our thoughts on COVID testing, and I’m not sure if you mean COVID tests or I know a lot, a lot of discussions has been on antibody testing. Here, it’s kind of the same considerations you have with temperature taking. EOC has said that you can conduct tests if they’re accurate and reliable. So, there’s that big question. But they do note that there’s false positives. And just because someone tests positive today, what does that really tell you? It doesn’t mean that they’re not going to test positive tomorrow. So again, you know, I think a lot of that is, right now, I don’t know that there’s enough testing available for employers to be conducting this type of testing, which is why I think a lot of the other measures that we’ve been talking about are the ones that employers are taking. But technically speaking, the EOC has said that it’s done, of course, in a non-discriminatory way, that it can be done. And then you need to meet all of the confidentiality requirements because it is a medical exam.

All right.

So, so one quick question someone had was whether I said that the FFCRA’s paid sick leave provisions apply to employers with 500 or more or fewer. It applies to employers, private employers with fewer than 500 employees. And for employers who sort of straddle that line between 500 employees, it can become a spot-by-spot issue where you have to determine it. Also, there’s a, there’s a limited exemption for small businesses with fewer than 50 employees. They may qualify for an exemption if complying with those provisions would jeopardize their, their, the viability of their business.

All right, thanks, Emory. Thank you, Carol. Thank you, Ron. And thank you, all of you for joining us today. Please be on the lookout for an invitation to the next webinar in this series. Session number two, Preparing Your Workforce, How to Navigate Safety Mandates and Recommendations. That’s going to be Tuesday. Same time, same channel. May 19th. And in addition to the next webinar in this series, we’ll also be hosting a webinar focused on return to work issues for unionized employers. Ron, you’ll be heading that. As well as a program focused on global return to work issues. Carole, I know you’ll be, you’ll be front and center on that one. Invitations for both of those are forthcoming. CLE evaluation forms, along with slides from today’s presentation, will be emailed to you shortly. The New York validation code, once again, is BLUE14. If we were unable to answer your questions today live, we will follow up in the coming days. We’ll answer every one of your questions. For ongoing updates, please make sure to subscribe to our resource center at Everyone have a great day. Thank you.


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