San Diego Business Journal

For many people, office life is a memory.

A good number of employees have not set foot in their workplaces since stay-at-home orders were handed down in March. Gallup Inc. reported in mid-May that 48% of Americans were working from home all the time, with an additional 20% working at home part of the time.

Employers, for their part, have a lot to think about these days: about the legal aspects of working with stay-at-home employees, and about how to properly handle employees once they return to the workplace.

The workplace isn’t going to be the same place they left in March.

Science and the Law

The challenges of dealing with the COVID-19 pandemic in the workplace are unprecedented, said Summer Wynn, partner with Cooley LLP in San Diego.

New information on the coronavirus situation is coming in by the hour. That includes scientific information as well as guidance from federal, state and local governments. “We’re getting new regulations all the time,” Wynn said.

An employer, however, has to consider a response within established frameworks of employment law, she said. Such a response has to be considered in light of workers’ compensation, employee privacy, workplace safety, wage and hour law, laws protecting disabilities, and medical or sick leave — among others.

Home Work

Businesses with employees working from home need to be “hypervigilant,” said Kyle Nageotte, attorney with Higgs Fletcher & Mack LLP in San Diego and a specialist in employment law. That is especially true for remote workers who are nonexempt (that is, hourly).

His advice, in short, is to keep records. Employers should maintain records of employees getting whatever meal breaks, rest breaks and overtime hours they are entitled to. An employer does not want to learn about a wage and hour situation years later in a lawsuit, and have no documentation from those times.

The issue was a critical one even before COVID arrived on the scene, Nageotte said.

Working in Shifts

San Diego’s recent public health order calls for maximizing telework. “We’re still in a predominantly telework period of time,” said Marie Burke Kenny, partner at Procopio.

When the time comes for employees to return to the workplace, Kenny and many of her peers said there will have to be changes. Masks and temperature checks will be common. Developing safety protocols will be very important, they said.

Kenny’s advice is to take a reasonable look at the existing work environment, and plan for necessary changes. Employees will have to stay 6 feet away from each other, but that may be difficult in some settings.

One possible solution, Kenny said, is to stagger shifts. One group of people could work Mondays and Tuesdays; a second group Wednesdays and Thursdays; and a third group Fridays. Running morning or afternoon shifts in the manner of a factory is another option.

Wynn, the attorney from Cooley, has several clients in life sciences. In some ways, she said, it is easier to adapt the lab environment for a return to work.

Under normal circumstances, lab employees are required to wear personal protective equipment: masks, gloves and smocks. Labs must also be held to higher cleaning standards.

One problem that may present itself in the lab is that technicians might work in close proximity to each other. The remedy to that situation could be staggered time schedules — that is, certain employees working the early shift and certain employees working the later shift. Shared equipment may present itself as a second problem. Solutions might include staggered shifts and/or changes to the cleaning routine.

Writing the Book

The health and safety of the workplace must be the employer’s paramount consideration, said Adam Rosenthal, partner with Sheppard Mullin in San Diego. Making sure policies and procedures comply with other areas of employment law comes only after a manager is comfortable with health and safety.

Rosenthal is co-author of The Employers Guide to COVID-19 and Emerging Workplace Issues, available from Castle Publications LLC. The book has gone through several updates and he is committed to update it throughout the year.

Rosenthal said he expects to see more wage and hour claims related to remote workers; the topic will likely become heavily litigated. Employees must keep track of time and can’t work off the clock, he said, though the arrangement promises to be challenge to employers.

Mary Dollarhide partner at DLA Piper in San Diego, said she expects litigation around new routines and procedures to get into communal workplaces. The disputes will center on whether delays in the path of travel to get into the physical work site — such as lining up at a doorway, or going through temperature screening, or taking a quiz about one’s health that day — should or should not be considered as work time.

Complicated Issues

One of the big questions around employment law and COVID-19 is whether an employer can require an employee to physically return to the workplace.

“It depends. There are a lot of moving parts,” said Brandon Saxon, partner with Gordon Rees Scully Mansukhani in San Diego and chair of its employment group. Saxon recommends consulting an attorney to discuss the specifics of a situation.

“These are, no doubt, uncharted waters,” he said.

Employees are resisting employer requests to come back into the workplace for various reasons, from fear to a simple preference for working at home, Dollarhide said.

There is also the matter of caring for children at home.

That is bound to be another big issue for employers and employees, Dollarhide said, noting the San Diego Unified School District’s recent decision to keep campuses closed when school begins on Aug. 31. The issue will have a disproportionate impact on women and minorities with few financial resources, she said.

Unintended Consequences

While benefiting employers in many ways, legislation to address the COVID-19 crisis gives some employees opportunities to take advantage of the people they work for.

Nageotte, the attorney from Higgs, said that in addition to creating a safe and sanitary workplace and following various government orders, employers would be wise to ensure that employees do not abuse benefits promised in recently passed legislation such as the Families First Coronavirus Response Act or the CARES (Coronavirus Aid, Relief and Economic Security) Act. Employee benefits spelled out under the recent federal legislation include paid sick leave as well as paid extended family and medical leave.

The Right Touch

Like several others interviewed, Saxon recommends managers follow what they are legally required to do while also exhibiting soft skills and flexibility.

Allowing employees “a little extra leeway” during uncertain times is a good practice, he said.

Part of Rosenthal’s book addresses communicating with employees.

“I don’t there’s a way to over-communicate with employees,” said Procopio’s Kenny. Employees feel a loss of control over their lives. Employers need to be empathetic and transparent. Part of having a productive and engaged work force is keeping employees up to date with relevant information.

“Being flexible is probably the most critical thing right now,” she said.