(Editor’s Note: First in a series detailing the issues business owners face as they navigate the COVID-19 crisis.)
As states around the country have begun to relax stay-at-home orders put in place to battle the spread of COVID-19, businesses and their employees are chomping at the bit to reopen and get back to work.
Or are they?
Of course they are, but owners know that, in the new post-COVID era, things aren’t going to be business-as-usual. Most states are going to add new requirements for the safety and health of workers and customers, and experts say a general fear about coming back too soon is likely to cause fear in workers returning to their jobs.
According to Timothy Williams, Vice Chairman of Pinkerton, a global provider of corporate risk management services and solutions, it’s largely a fear of the unknown.
“There’s a great deal of anxiety,” Williams said. “There’s so much we don’t know. We have generally accepted protocols to deal with other crises. We understand how to deal with an earthquake or a tornado. But there are still so many unknowns and so many variables with (COVID) that we’re going to have to be exceptionally patient as we reopen the economy.”
The anxiety is coming in waves from several different directions. Employers are concerned, for instance, about being able to comply with new safety standards that are almost certain to be imposed when they’re allowed to reopen.
Workplace safety the biggest concern
Having workers report back to a safe environment is going to be one of the paramount obligations for employers. Businesses will likely have to have adequate personal protective equipment in place, as well as policies about cleanliness and sanitization.
Occupational Safety and Health Administration (OSHA) regulations are certainly going to affect how companies do business. According to information on the OSHA website (www.osha.gov/SLTC/covid-19/standards.html), some of the more relevant requirements include:
- OSHA’s Personal Protective Equipment (PPE) standards, which require using gloves, eye and face protection, and respiratory protection when job hazards warrant it.
- When respirators are necessary to protect workers, employers must implement a comprehensive respiratory protection program in accordance with the Respiratory Protection standard.
- The General Duty Clause requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
Denise Navarro, President/CEO of Houston, Texas-based Logical Innovations, Inc., said the requirements will likely vary by industry, but will still likely be, at a minimum, a financial stressor.
“For instance, I have noted that some businesses are restructuring and redesigning office layouts to accommodate continued social distancing,” Navarro said. “This could lead to additional costs and limited space.”
Workplace safety standards are going to be a focus. According to information provided by the Michigan OSHA, more than 300 workplace complaints were received March 30-31 alone.
What will new standards look like?
Steve Girard, a labor attorney with Grand Rapids, Mich.-based Clark Hill PLC, said OSHA inspectors will look at employers who had COVID-19-positive employees and ask if the company “did everything they could do” to protect employees. If OSHA determines such wasn’t the case, Girard warned, companies could face citations.
The problem with that, he said, is it’ll be an after-the-fact determination of whether companies did everything they could against a virus nobody has ever seen.
“You’re going have investigators after the fact doing some Monday morning quarterbacking and saying ‘you could have done more,’” Girard said.
What safety standards may be required is still a bit of an unknown, and most businesses are already setting up to meet projected requirements as best they can.
For instance, Mid-West Instrument – which develops proprietary designs manufactured for Original Equipment Manufacturers – is already, among other actions, voluntarily testing employees for temperatures at the start of shifts; locking visitors out of the building; requiring staffers to clean their own work areas; placing hand sanitizer throughout the building; offering cloth masks to every employee; and suspended all work-related travel.
Can business keep up with evolving standards?
Because Mid-West Instrument was identified as an “essential” business, the company has remained open during the stay-at-home order, and has only laid off two of its 40 employees. But business is down, and the company is waiting to hear about its loan under the Paycheck Protection Program.
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Meanwhile, company officials worry about what the requirements will look like when the stay-at-home order is finally eased.
“As this is rapidly changing we do not know what new requirements may be implemented,” said Mid-West Instrument President Mike Lueck. “We are concerned that impractical safety requirements may be imposed which far exceed CDC recommendations.”
Workplace rules changed to benefit the employee could be problematic for employers, as well. For instance, Whitmer signed an executive order last month saying businesses can’t punish workers who stay home when either they or their close contacts are sick.
And Clark Hill’s Girard said worker’s compensation will likely be another big issue for essential employers operating now and non-essential employers when they reopen. Rules were changed last month, Girard said, that employers of first responders and healthcare providers who contract COVID-19 must prove by what Girard called “objective evidence” that the worker didn’t get it on the job before denying a claim.
Legal and political challenges are popping up over how states and individual companies are handling the pandemic. For instance, Illinois Gov. J.B. Pritzker was sued by a couple of business groups and by a state legislator for establishing a stay-at-home order (a judge ruled in favor of the legislator and issued a stay in that legislator’s favor).
An employee of a Tuscon, Arizona electrical company was recently awarded $1,600 because the company denied him paid sick leave after he was told by a doctor to self-quarantine.
And there was a lawsuit filed by a director of Eastern Airlines who was fired just days after requesting time off to tend to an 11-year-old child.
Lois M. Kosch, a partner in the employment law practice group for California-based Wilson Turner Kosmo LLP whose practice emphasizes the litigation of harassment, discrimination, wrongful termination, and wage and hour matters, said that, while the DOL wasn’t doing much enforcement at first, they are now.
“Enforcement actions are happening, whether from the government or private attorneys, so (businesses) should keep those obligations in mind,” Kosch said.
She said some 187 new labor laws have been passed as a result of COVID-19. For instance, the Families First Coronavirus Relief Act mandates paid sick leave and paid time off to take care of children.
There are also obligations under the Family Medical Leave Act to accommodate employees who have child care challenges. That law, Kosch said, entitles employees up to two-thirds of their regular pay, up to $200 per day.
That’s not going to help businesses already looking at balance sheets that aren’t exactly balanced.
“These additional costs in benefits and required payroll additives add to the already-stressed bottom line for some businesses that have been ‘on hold’ during this crisis,” said Logial Innvoations’ Navarro.
To pay unemployment or not to pay, that is the question
Unemployment assistance is turning out to be a double-edged sword. While it provides compensation for workers who lose their jobs, the additional $600 provided by the federal CARES Act can also make it easier for workers to stay off the job because the compensation is often better, particularly in some retail and restaurant businesses.
If the employer tries to bring them back, and they refuse because the money is less, the employee then loses the right to unemployment.
Kosch said recently updated guidance from the U.S. Department of Labor determined workers in that situation are not authorized to collect unemployment, including the $600 federal supplement.
But Dan West, president of the Livonia, Mich., Chamber of Commerce, said he’s still hearing from business owners there are “a lot of concerns” about workers coming back, particularly among restaurant owners.
“Restaurants had to lay off all their wait staff, so a lot of them have taken jobs at Amazon, Walmart, what have you, and may not come back,” West said. “I’m hearing owners are looking for means of bringing people back part-time so they can still get unemployment. There’s really no incentive to come back if they’re making more (on unemployment).”
Kosch pointed out that they won’t be, at least not for long.
“Without (the $600 federal incentive) they wouldn’t be making more than if they were working,” Kosch said. “I think letting people know if they decide not to come back to work when work has been offered to them they’re going to lose that federal supplement … might be a powerful motivator.”
The other thing about which business owners have expressed concern is a question of what the rules will look like when they are finally allowed to reopen. Governors in states like Georgia, Tennessee and Texas have already issued guidelines for re-engagement.
That’s a good thing, according to West.
“The uncertainty is the biggest thing … business people are planners,” he said. “Right now, that uncertainty makes it hard for them to plan. And they can’t work right now, and that makes it even more frustrating for them.”
New requirements could slow productivity
But it’s not just the state rules that trouble some business owners. Ted Barker, the president of Livonia, Mich.-based Shaw Construction and Management Company that employs some 20 workers, said he received a list of 20 requirements the Michigan Building and Construction Trades Council wants him to follow when reopening.
Among them are requirements for personal protective equipment (PPE), a specified COVID-19 site supervisor, asking employees to self-identify if they have symptoms, and having running water – “A lot of our sites don’t have running water,” Barker said — and soap on job sites.
“They feel this is a good baseline for future work in this environment and that it will provide the governor with assurance that the Michigan construction industry has the infrastructure, culture and training resources to safely return to work beyond the critical infrastructure projects currently underway,” Barker said. “The (COVID requirements) will cost dollars and has the strong possibility of slowing down productivity, which again will cost dollars to all involved. But I don’t know how we can get clearance to work without trying to inforce a new set of guidelines, either.”
Crisis could crush morale
What owners should really be concerned about, according to Pinkerton’s Williams, is the culture that will exist once restrictions are eased. Morale could be a problem, and business leaders are going to have to be acutely aware of the emotional states of their employees.
“There’s a lot of anxiety around the world, let alone in the United States, about ‘do I have a job,’ ‘do I want to go back to work when I can get paid a little more in the interim?’
“Some have lost coworkers and relatives and haven’t had the chance to grieve,” Williams added. “You’ve got a lot of emotions coming into this, and a lot of fear, because it’s a scenario where we don’t have complete information and may never have.”
Mid-West Instrument’s Lueck agrees about the morale, and says Michigan officials, including Whitmer and Attorney General Dana Nessel, haven’t helped the situation with what he calls “aggressive statements.”
“This has been a real issue due to … their total lack of recognition of critical manufacturers supplying to medical gas industry, oil and gas, power generation, military and safe distribution of drinking water,” Lueck said. “This has raised the stress level of many employees who question if we should remain open even though almost all of our products support industries listed (as) essential critical infrastructure workers.”
Fear will also play a role as workers return with concerns about contracting COVID-19 in the workplace. Sonya Bielecki, owner of HR Professional Support Services and a consultant for Express Employment Professionals, doesn’t believe there’s any way to completely reduce an employee’s fear of COVID-19 or the chance they’ll contract it in the workplace.
She said company leadership, “regardless of their personal opinions on COVID-19,” must present a coordinated message to the staff. The other idea she suggests is for employers to prepare a formal communication to workers outlining all of the safety steps they’ve taken.
“If you can prove to an employee that you’ve made CDC and OSHA requirements happen and you’re taking all the steps to keep them safe, that’ll reduce a lot of fears,” Bielecki said. “But the communication has to go out before their return.”
Pinkerton’s Williams agreed communication is the key when there are so many of what former Secretary of Defense Donald Rumsfeld called “unknown unknowns,” things we don’t know that we don’t know.
“That’s perfect for how we are today … It’s not going to be easy,” Williams said. “Communicating with employees several times a day routinely with current information about what we know and what we don’t know would help a great deal with morale.
“If we can be extraordinarily patient in these times with ourselves, with our customers … I think that will keep the security issues at a minimum, and it’s really going to pay off in morale issues,” he added. “People are on edge, anxious. We’re in uncharted territory for our generation. That’s why that ‘high-touch’ (by telephone and conference calls) and very frequent communications that are forthright is going to be very important.”