The Changing Workplace, Part 2: Creating New Workplace Safety Policies

The pace of policy change affecting workplace safety is at an all-time high. Claire Deason, an attorney at Littler Law, offers insight on designing policies and protocols that align with constantly evolving government guidelines and legislation.

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In the past, once a decision was made to implement a change in workplace policy, a company could plan that the policy would stay in place for the relatively long term. Not anymore. 

“Gone are the days where HR and legal teams could have a phone call on Monday, make the change effective on Friday, and not talk in-between,” says Claire Deason, an employment and labor attorney and shareholder with Littler, one of Workday’s product compliance law firms.

That’s because with government guidance and laws around COVID-19 changing so rapidly, there have been situations where Deason has had to change her workplace policy guidance for clients within the same day. 

To make matters even more complicated, requirements for handing safety and health issues during the pandemic vary considerably from one locality to the next—often from county to county—and change regularly. That’s the landscape companies are facing as they adjust policies around the highly critical issue of workplace safety. “It has been very challenging for employers to stay on top of, and for that reason, HR and legal are working closer together than ever before,” Deason says.

In part two of this Q&A with Deason, she offers her take on designing policies and protocols that align with constantly evolving government guidelines and legislation. 

It’s clear workplace safety will be a primary focus from a compliance perspective. What are some of the issues HR professionals should keep in mind as they began to consider changes to workplace safety policies? 

We're starting to see more opportunities to get back to the workplace, at least in some locations. So the immediate question is, how do employers do that safely for their employees? That raises all sorts of policy and practical considerations, including how to meet obligations under the Occupational Safety and Health Administration (OSHA) rules. Then there are considerations such as how or whether to implement temperature taking, antibody testing, or providing masks and gloves, requiring masks and gloves, distancing employees from one another—a long list.

On a personal level, employers have to consider how to address employees’ worries about coming back to work and how to practically roll out social distancing in their workplaces. Can you have everybody eat lunch at the same time when there’s a small lunch room in a 15-person office, because when you measure the lunch room they can't stay six feet apart from one another?

There are very specific details for the considerations employers should make in trying to decide how to make the workplace a place people can actually return to, without putting the employees and the company at risk.

How are COVID-19 government guidelines and laws impacting current company policies?

Another responsibility and challenge is complying with the myriad protected and paid sick leave rules. There’s an unbelievable amount of regulatory nuance and detail, and these nuances go all the way down to the county and city level. 

For example, the federal Families First Coronavirus Response Act (FFCRA), is partly an expansion of the Family and Medical Leave Act (FMLA), but it’s slightly different because there are different triggers and eligibility terms for the new paid leave component. Our clients and practice groups have had to quickly learn what those rules are—and in a time when the regulations were unprecedentedly fast-tracked. And then you layer that on top of existing sick leave rules that many states have passed; protected paid sick-leave entitlements in a variety of states and cities. We’re interpreting state guidance for whether and when state-level paid leave applies to all kinds of new absences from the workplace. And how these different laws work together is a big question, and the answer always depends on the facts.

Ultimately, legal guidance on workplace policies will depend on what’s coming from the various state agencies that enforce those rules and as we go on in this pandemic, how agencies and courts are interpreting the statutes and regulations describing the rules.

“The landscape changes by the minute, and what is considered private information by government agencies changes by the minute, too.”

Claire Deason employment and labor attorney, Littler Law

How are privacy and data considerations adding additional complexity to maintaining a safe workplace?

This pandemic connects people in a way that we never really were connected before. It really can't be denied that your health is going to affect mine and my family's, so we suddenly have this burning desire to know all there is to know about the people in the room with us. And of course, if we're in a room that's operated by our employer, we're going to ask our employer that information. 

So most HR professionals who are getting people ready to return to the workplace should be prepared for questions coming from employees about other employees: "So-and-so's husband works in a grocery store and I saw her and she wasn't wearing a mask. How do I know she's not sick?" 

These are very important concerns, but they create a risk of intruding into people's private lives. The landscape changes by the minute, and what is considered private information by government agencies changes by the minute, too. For example, over the course of the pandemic, we've gotten different guidance from the Equal Employment Opportunity Commission (EEOC) on temperature taking. At the beginning of the pandemic, the guidance was that it’s an inappropriate health inquiry. Then a few weeks later, the EEOC’s thinking on temperature taking evolved; it’s an oversimplification, but now they’re essentially fine with it, at least during the duration of the pandemic. It absolutely needs to be at the top of every HR professional's list of concerns—that when either the company or its employees want information about other people's health, that’s something to tread lightly with. It’s really important to be transparent with employees about the data that’s being collected, how it’s being used, and what’s being done to keep it secure.

Safety measures like masks or face coverings are widely becoming a requirement for businesses to reopen. For some HR professionals in office settings, this will be the first time managing a company safety measure policy. What should they keep in mind? 

Required safety measures and equipment has typically been limited to particular industries, but outside of those industries, it has certainly not been the bread-and-butter of the average office HR professional. So yes, it's going to be a new learning curve for many HR people. 

HR professionals will have to consider several factors when designing an effective safety measure policy: How should a mask fit? How should gloves fit? How do we train people to use masks and gloves? How do we properly discipline employees who don't follow those rules? How do we accommodate people who can't follow those rules because of different disabilities or religious views? How will we handle employees who object to wearing a mask? And then, how will we handle employees who object to those employees who object to wearing a mask?

For example, consider employees who are hearing impaired and read lips: If everyone's wearing a mask, communication becomes difficult. For individuals who wear a long beard because of religious reasons, the mask may not be as effective or they might be unable to wear a mask. So, for HR, those particular disability and religious accommodations may be new considerations and something they will want to be prepared to respond to.

“Finally, many companies are grasping for benchmarking, trying to determine what others in their industry are doing.”

Claire Deason employment and labor attorney, Littler Law

What should global companies consider when they create workplace safety guidelines and policies? Any challenges or potential issues they need to be aware of?

Gosh, if you thought it was complicated keeping up with all the different rules in the US, try keeping up with the whole world! Employers trying to find a one-size-fits-all solution to workplace safety for locations around the world are struggling. There are profound differences in employment laws from one country to the next, which makes it difficult to develop a compliance program that meets every criteria. We’re also seeing significant cultural and social differences that have a big impact on employers’ approaches globally. And different political responses to the pandemic are clearly affecting the rules and regulations that are imposed.

Finally, many companies are grasping for benchmarking, trying to determine what others in their industry are doing; it’s important to understand what the trends and norms are in the region. So, we recommend working with local counsel to develop country-specific approaches that factor in all these nuances.

Beyond designing policies and programs that look after physical health, should employers also consider creating programs that prioritize mental health and wellbeing?

Mental health is a really big concern, as it should be for every employer. If you work full time, most of your day is spent with people who aren't in your family. And yet, before now, we never thought much about it. This pandemic is prompting people to think more empathetically and personally about what their colleagues are going through. And they should, because we’re each going through a lot—and this experience is different for everyone, too. 

From a benefits perspective, we expect to see more varied and mental health and support programs going forward—access to counselors, access to childcare—the benefits many workers need right now.

Colleagues care about one another, and we know that now more than ever. When employers turn that care into policies and programs that will help their people live their lives and work with less stress, those actions make employers and employees feel more connected and appreciative of another, and that’s a wonderful thing. A silver lining we can hold on to.

The information contained in this blog is provided for informational purposes only, and should not be construed as legal advice.

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