Protecting Workers When Reopening Businesses in the Covid-19 Pandemic

Reopening a business during the pandemic is essential and inevitable, but it will certainly be a daunting process that will require consideration of how workers can be brought on board safely, how customer concerns will be addressed and how everything can be done in a way that allows the company to survive financially.  The company’s response to the pandemic should be coordinated and formal and based on a solid and comprehensive plan developed and implemented by a cross-functional team that includes representatives of all of the company’s departments and activities.  It is essential to have input from a group of employees who can express the divergent concerns that will inevitably arise in the workforce including views on remote working and scheduling and concerns about preexisting health conditions that increase vulnerability to the virus and caring for family members.  The level of risk relating to the virus will vary depending on job duties and interactions with others and needs to be factored into the overall plan.  The team can and should serve as a bridge for communications between management and employees; however, the employees on the team should not be the sole voice of the workforce and the company should also create other means for all employees to provide input and suggestions and submit concerns (e.g., an anonymous hotline).  Facilitating communication makes it easier for the company to impress on workers that many aspects of their welfare and safety depend on their acting responsibility and complying with the guidelines that have been established.

Each plan will be different; however, reference should be made to guidelines released by governmental agencies such as the Centers for Disease Control and Prevention, Occupational Safety and Health Administration and Equal Employment Opportunity Commission, as well as any industry specific protocols and guidance issued by nonprofit and inter-governmental organizations such as the Business & Human Rights Resource Centre, the Institute for Human Rights & Business and the OECD Centre for Responsible Business Conduct.  If one exists, the company should participate in any group of similar businesses that may have been formed to share best practices on how to respond to the virus.  This can be particularly valuable for smaller businesses that lack the resources for creating a robust plan on their own, but care must be taken to implement suggestions in a manner that is reasonable given the size of the enterprise. 

When developing and implementing the plan, the company should involve specialists such as an attorney who can explain legal requirements and risks, workplace health and safety consultants who can assist on preparing the workplace, scientific and medical experts who can help company leaders make sense of the continuous stream of data on virus and how it impacts the implementation of the plan and human rights consultants who can advise leadership on how the pandemic and the decisions that are being made impact the company’s duties to respect the human rights of its workers and other stakeholders.  Adding a human rights lens is important because companies should not simply “do the minimum” or fixate on coaxing workers and other stakeholders to compromise their rights.  Businesses and their leaders have a higher duty to act with care and responsibility.  While the executive team should take the lead in developing the plan, it should not be finalized unless and until it has been carefully vetted by the company’s board of directors and input from consultation with stakeholders (including investors that might not be represented on the board) has been integrated into the plan.  The plan should be continuously monitored and revisited and should include metrics that can be used to assess effectiveness and bring problems to the surface.

The plan needs to cover protecting the workspace and lay out the details of a new workplace that is configured to address and reduce the risks associated with the virus.  Among the issues and questions that need to be considered are the company’s policies regarding telecommuting including how the company intends to monitor work hours and performance of employees while they are working outside the office; social distancing, personal hygiene; use of masks and other personal protective equipment and reconfiguring workspaces; managing and protecting common workspaces such as elevators and breakrooms; manipulating work schedules to reduce crowding in the workspace; cleaning; health checks, which should be done by persons who have been properly trained and based on legal advice regarding the types of information that employers can collect from employees and how that information can be used and how it should be protected to respect workers’ privacy rights; business travel and protecting employees against risks associated with third parties entering the workplace (e.g., providing that the company’s policies apply to all visitors and requiring that outside sanitation teams follow safety protocols).

In addition to protecting the workplace, specific consideration needs to be given how and when the available worker talents are deployed.  Companies need to consider when they will reopen for business and what activities will be required in order to provide the services that will actually be purchased by customers and clients.  The answers to these questions will dictate which employees are absolutely necessary to conduct business and once that group has been identified attention can turn to the best way to deploy them.  Can some of them work remotely?  Can the company offer flexibility in terms of timing to those employees who must be in the facility to carry out their job activities?  Are there any known risks associated with likely worker commuting patterns, such as the need to take long trips on public transportation?  Which of the employees have special issues that need to be considered such as the need to care for children and other family members or legally-protected characteristics and conditions such as age or disability?  The company needs to be prepared to comply with reasonable requests for accommodations in a consistent manner and assist workers with exercising their rights relating to extended leaves and childcare obligations.  When making decisions about which workers to bring back, care must be taken not to act in a manner that might be seen as discriminating against particular groups (e.g., women, workers from certain racial or ethnic groups and people known to have pre-existing health problems).

Leadership needs to analyze the company’s business model to identify the risks associated with each activity and decide whether to eliminate or modify those activities in order to operate safely while still being able to keep the business open.  Business model analysis is also the opportunities for companies to assess the pandemic responses of business partners, such as landlords and suppliers, to determine how those relationships might impact the company’s plans for reopening safely and productively.  For example, companies renting space in buildings where other businesses are operating need to understand how landlords will be managing health and safety in common areas.  Actions of supply chain partners will impact availability of inputs for the company’s operations and may cause reputational damage to the company if suppliers are not able or willing to adequately protect their workers.

The company also needs to have a plan in place in advance to respond to news that an employee has symptoms of the virus or that a member of an employee’s family has virus-related health issues that require that the employee take time off from work to assist with care and maintaining the household.  When these types of situations arise, the company must act carefully but compassionately and document their response following consultation with applicable federal and state laws and regulations relating to maintaining confidentiality of an employee’s health situation and sick and family leave.  The legal requirements for paid sick and family leave need to be understood, particularly exceptions for smaller employers and for certain types of employees; however, employers may decide to offer more generous benefits in line with principles of human rights.  Whatever approach is taken, the rules must be clear and transparent so that employees know when they can leave the workplace due to illness and what they can expect from the company in terms of pay and benefits and criterion for returning to the workplace once the personal health crisis has passed.  When developing guidelines for this situation, attention should be paid to contingency planning that addresses what would need to be done in terms of management responsibilities in that event that one or more of the senior business leaders are unable to perform their duties due to the virus.

Workers need to know when they are expected to report to the workplace and be provided with a clear list of expectations regarding the fulfillment of their duties and the steps that the company will be taking to protect them.  Customers must also be informed about the precautions that the company has taken and will be taking going forward in order for them to feel comfortable entering the workplace or otherwise doing business with the company.  Certain basic questions should be anticipated and addressed in “question and answer” instruments that are readily available through display in the workplace and on the company’s internal website.  When workers have returned, either in person or via telecommuting, leadership should take the time to explain to all of them how were previously made regarding layoffs and furloughs and how the company intends to address changes in staffing requirements going forward.  Leadership also needs to understand that it is likely that productivity will suffer in the days following reopening as workers get used to new routines and cope with limitations associated with certain of the precautions that have been implemented in the workplace.  Goals and performance metrics for workers should all be reviewed and appropriately adjusted.  Finally, existing policies and procedures including employee handbooks should be reviewed and amended in light of new legal requirements and methods of operation.  While the pandemic is a horrific event, it does open opportunities to do things differently and address operational problems that were festering before the crisis occurred.

Deliberation, communication, patience, flexibility and compassion are the essential elements for any plan for reopening a workplace during the pandemic.  As discussed above, businesses need to have a plan supported by policies and procedures that are based not only on legal requirements but also recognized human rights and social responsibility standards.  Plans, policies and procedures should be developed and implemented under the direct oversight of the board of directors and in a coordinated fashion through a working group that includes cross-functional leadership, worker participation and inputs from health, safety and human rights specialists.  At a minimum, the planning process should address reconfiguring and protecting the workplace, worker deployment, protection and support of workers and business model assessment and include protocols for responding to evidence of virus in the workforce.  Stakeholder engagement and consultation, particularly with workers and customers, is essential for collecting and disseminating the information necessary for the company to weather the unchartered waters of the crisis.  Finally, trust is essential during this whole process and company leaders need to be committed to transparency and consistently communicating with workers, customers and others impacted by the company’s decisions and operations.

Sources:  A large library of resources has emerged with guidance for employers on coping with the pandemic and this discussion has benefited from the ideas laid out in K. Van Voorhees, Protecting Your Employees and Your Company on Re-Entry (Stock Legal Blog, May 14, 2020) and L. Chapman, Reopening Your Business—Best Practices (Strategy Law LLP, May 15, 2020),   Companies should also go “beyond the law” and address the pandemic as an opportunity and obligation to respect the human rights of workers and other stakeholders.  Useful information and guidance is available from the Business and Human Rights Resource Centre and from the Institute for Human Rights & Business, and reference should also be made to “COVID-19 and Responsible Business Conduct” prepared and published by the OECD Centre for Responsible Business Conduct. This article is included in A. Gutterman, Sustainability and Human Rights Standards and Instruments Relating to Labor Practices (Oakland CA: Sustainable Entrepreneurship Project, 2020), available at www.seproject.org.