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Communications Take On Added Importance in Wake of COVID-19 and Civil Unrest
As I write this article in June 2020, employers throughout the United States are all struggling with how to work in a pandemic, with rules and regulations that seem to change just as soon as you learn them and that can differ from those in the next town, as well as how to respond to civil unrest seeking changes to end racial injustice.
It can all seem overwhelming and as if there is no safe course of action, with every decision fraught with potential landmines from just some bad publicity to perhaps loss of life. Sometimes, it can even seem like a choice we make, or a word we choose, will be deemed a political statement when all you are trying to do is save your business. While I would like to tell you that this article will have all the answers, it will not. You can count on that at least. But it does contain reminders of employment principles that will hopefully get you through most of these turbulent times.
As regular readers of this column will know, I place a strong emphasis on communicating with all employees, from the lowest to the highest. Generally, those prior columns have focused on communications for setting forth clear and consistent expectations and providing employees with feedback regarding
by Douglas H. Duerr
performance relative to those expectations.
None of the current events change this fundamental principle of a good working environment that is less likely to result in a legal claim. However, while communications remain important, it is also necessary on the part of the communicator to be aware of the needs and wants of the target audience. While the communicator (i.e., you) need not agree with those needs and wants, it is important to be sensitive to them when communicating expectations and providing feedback. For example, simply acknowledging the fears and concerns of employees as they themselves navigate through the pandemic and the unrest can go a long way toward diffusing a potentially confrontational situation if the expectation or feedback is “bad news” to the employee.
We all get bad news of one form or another during the week, and the way in which it is delivered makes a world of difference. Keep that in mind as you communicate with employees, and do not hesitate to overcommunicate not only your expectations but also how things are going for the business and what your plans are for keeping the business going.
As you are communicating and making decisions, it is important to remember that the laws governing workplace relations remain fully in effect. While perhaps there has been loosening of some aspects of the disability laws prohibiting medical inquiries, very little (if anything) has loosened up in the areas of employee and labor relations. So here are a couple of key reminders:
1Although you can take employee temperatures and make COVID-19- specific inquiries, privacy of medical information (including those daily temperature readings if you keep them for some reason) continues. Keep confidential as much as you can, limiting those who are informed of any medical information.
2In addition to the regular requirements regarding leave (e.g., Family and Medical Leave Act or leave under the Americans with Disabilities Act), the Emergency Paid Sick Leave (EPSL) and Expanded Medical Leave Act (EFMLA) provisions of the Families First Coronavirus Response Act are still out there and remain in effect until Dec. 31. On April 1 when these leaves went into effect and businesses were scaling back and furloughing employees, you may not have had to comply with any of those requirements, so remind yourself of the requirements. It may be that when your employee says he or she does not want return to work yet you need to know why so that you can decide whether EPSL or EFMLA applies.
3Make sure you comply with workplace safety requirements. The Occupational Safety and Health Administration (OSHA) has issued guidance on measures to take, including assessing the potential for exposure to the virus and engineering and administrative controls that can be implemented to prevent employee exposure. The steps you take here not only reduce the likelihood of an OSHA violation but may also be central to whether an employee is awarded unemployment compensation for refusing to come to work. Also, labor unions are actively recruiting (and employees are reaching out to unions) over the issue of workplace safety, and there is no need to add that headache to your list.
4Wage and hour laws still apply to those times when an employee is required to be on the premises or is performing work. Here, if you require an employee to undergo a temperature check or answer questions when showing up for work, the best course of action is to treat that time (including while waiting in line if necessary) as work time. This is a fact-specific inquiry under the wage and hour laws, but the trend (particularly under state law) even before the pandemic was to find similar pre-work activities compensable. 5 Remember that labor laws apply to situations when employees, either collectively or on behalf of co-workers, speak out on or act on (e.g., withholding labor) their workplace terms and conditions. Thus, like the strikes and picketing a few years ago in connection with demands for a $15/hour minimum wage, employees should not be disciplined or suffer an adverse employment action because, for example, they raise issues regarding safety or alleged systemic racism in their workplace.
6Try to keep politics (including your politics) out of your workplace conversations and communications. Although your business is an extension of yourself, your employees expect you to be focused on the business, including your customers and your employees. Keeping politics out of your workplace communication demonstrates that focus and, perhaps also importantly, allows you (particularly with the November elections) to instruct your employees to keep their politics\disputes out of the workplace too.
These are trying times for you and your employees. While there is always the potential for missteps and, even in the absence of a misstep, for employment claims, sticking to the basics helps minimize the risk and allows everyone to focus on keeping the business going until we get to the “new normal.” S
