Episode 69: Tips for Reopening Your Workplace

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chambers, executive Vice President and General Counsel. And back on the podcast, our frequent guest, Jennifer Shaw of the Shaw Law Firm. Hey, Jen, how are you?

I'm good, Erica. How are you?

I'm doing well. And it's the Shah Law Group. Sorry, I said Shaw Law Firm. My mistake. So, all right, I'm really excited to talk about this because there's a little bit of optimism in it, and I'm an optimist. Going back to work, getting the shelter in place, orders lifted. So what I want to talk about today is coming back from the shelter in place. How can businesses start getting their teleworkers to come back to the office? And we know, I'm sure you've heard from a lot of your clients, this fear that there's no way we're going to get these people back.

Well, right. And this is kind of like what I hear them say about, I can't get anyone take a compliant meal period. And I'm like, oh, I'm sorry, who signed the checks in this place? Right. Like, at a certain point, they're coming back because you tell them to come back. Right. So there is a little bit of a power dynamic where. Where we have to understand that when the employer's ready to come back, the employees are going to come back or they're not. Right? We have to decide what we want to do. I think the really interesting issue is what do you say to somebody who says, but I've been teleworking for eight weeks. It's gone really well. Look at the email you sent me last Thursday saying what a valuable employee I am and I want to keep working. Telework. Are we ever required to do that? Right? And of course, the legal answer is not, unless somebody needs it as an accommodation, which is a separate, complicated issue. But there will be morale problems because unlike me, who gets a little itchy working at home, some people feel like they've died and gone to heaven, right? They can go from their living room to their kitchen to their home Office and their PJs. They're really organized. They don't have any problem. They don't feel distracted by anything. It's pretty easy for them. Those are the folks who are going to be like, can you remind me why you want me to get in my car and come back to work? Because I'm not really into it.

So let's. First, I know the accommodation is a real sticky. And that's a whole nother podcast. But I know there's a lot of employers that are concerned about that with. All right, when we've evaluated reasonable accommodation requests, we really push back heavily that the the job can't be performed working from home. How is this going to change things? And is there any guidance from the EEOC on this very issue?

So, Erica, that's a great question. Here's the situation. What the EEOC says and what we need to focus on is this idea that our employees may not have been doing their essential functions from home. For example, our receptionist is teleworking. She isn't signing for packages, she isn't answering calls. She isn't doing any of that. She's doing some back office stuff because we want to keep her busy. That doesn't mean she's entitled to telework. We've allowed her to telework and not perform the essential functions of her job. Therefore, even if she comes back with a medical reason that she needs to telework, we can say, look, it's not a reasonable accommodation because you can't perform the essential functions. So it's very important that we don't say things to people like, it's amazing how you can do every part of your job from your living room. Right. You have to think about those things because it's going to be very important to be able to say, that was Covid. Covid is different. We have remote work agreements that we give to our clients. It's a Covid remote work agreement. We don't give them just a regular old remote work agreement. It's one that is tailored for COVID 19. So we can say, hey, you know what? We let you do that for Covid because that was some crazy unprecedented time. Basic accommodation. It's not working for us. We need the collaboration. We need all these duties that you couldn't do when you were at home. It's going to be position specific, but it's a different analysis. And I think we've got some good arguments there.

Awesome. Okay, so let's put to bed that issue and now let's talk about, I think, more of the challenging issues. Right.

Businesses are starting to get back online and they're trying to figure out what is it going to look like, how do we roll people back in, so to speak. And I feel like right now is a great time that President Trump issued his three phases, giving a lot of discretion to the governors. And Governor Newsom hasn't yet unveiled his plan, although we are hopeful that that will be coming Soon. So now's a good time for employers to start to think, what are some, some things that you think that they should be thinking about?

So, first of all, some really basic things like can you bring all your employees back and keep them six feet away from each other? So are you packed in cubicles where that is impossible? Are you going to need to do staggered shifts? Are you going to need to do longer shifts and a four day work week? What are you going to need to do to be able to get those people back? Second of all is following all of the CDC guidelines. So just exactly what we did before we sent them home, before we realized we really had this stay at home order shelter in place. Do you have wipes? Do you have masks for people to wear? Do you have a good cleaning service? What are you doing to deep clean when appropriate? All of those things are important. What are you doing for the outsiders who come in your workplace? Do you make them wear a mask? Do you make them wash their hands? Do you say, we don't want anyone to come in? Right, we're just gonna do, yeah, we'll have our employees here, but we're not gonna be open to the public. This is of course a typical lawyer answer that drives people crazy. But the truth is, it's gonna depend on the workplace. It's gonna depend on even the individual jobs in the workplace. What I think is the most important thing is what you just said, which is let's start planning, let's start thinking about how this is gonna look. How am I gonna rearrange my desks? What additional equipment might I need? Do I need to think about doing multiple shifts or alternative work week schedules or whatever options might be out there? Now is the time to think about that. Because when we are, quote, released to return to work, Governor Newsom at least has made clear that that's gonna be based on scientists, it's gonna be based on medical information, and it's gonna be in phases. We're not just gonna all of a sudden let kids go back to school and sit on top of each other the way they have been. So there's going to have to be a way for us to implement an orderly return to work. And it does have to start with the employer. There's no other way to do that. Just like the president has to sort of defer to the states, the states have to defer to the individual employers what's going to work for you and what isn't. And again, just like we said when we were talking to people about how to deal with the shelter in place. They've got to think outside the box. They've got to be open to different ideas, things they may not have done before, ideas that previously were just not that attractive to them.

And I think also layering upon that is in planning. Of course it's hard to plan for something that you don't know that is so unknown. And I mentioned that because as we've seen particularly in California, the different local health departments have had different guidance and different requirements for employers for the citizens of that locality to follow. So I'm guessing that we might see a lot of piecemealing up and down the state as well. And so with that in mind, you know, perhaps the way that the employers or businesses, because they might be listening, going, okay, well how are we supposed to plan? We don't even know. We don't even know when the phase one in California is going to begin. You know, one of, one of my thoughts is perhaps they just think about, okay, worst case scenario where we, the social distancing of six feet apart like you talked about, is there a segment of our workforce that we could bring back that can maintain that 6ft distance? Or to your point, as far as typical lawyer response, it depends. It truly does. Because you might say, okay, this is a manufacturing location and we need people back here. How do we make it happen?

I think that's right. And I think part of that is really, like I said, thinking outside of the box from this perspective. Right. If you're a manufacturing facility, for example, and you have different teams making different parts, you might be used to them all working together. Everybody makes the parts together, they go to this central repository and then we start putting the piece together. Maybe it won't mess things up. To do we make part A on Monday, part B on Tuesday, part C on Wednesday, part D on Thursday, we put it together on Friday. It just requires, you know, it's sort of the full employment act for humans. Right? Because these are things that cannot be dealt with by a computer. These are things where human beings have to get together and think about how can we do this safely, how can we make people feel comfortable if we're open to the public, how do we make the public want to come in? You know, I gotta tell you, I am an out to eat person, right Elle? And I love eating out. I can't believe I've eaten at home this whole time. Like I have not gone out, I haven't done takeout, I've done nothing. So it's so interesting to Think about, are we ever gonna go to a restaurant and order off of a menu? I guess we will. It's just gonna be a little different, right? And I can't really define how that's gonna be right now. There's a word that I love that I think comes into play here, which is grace. Really having some grace and thinking about what's the best way to do this, what's the most effective way, what's the least intrusive, what's the way that I can comfort people to get them back. I mean, don't forget some of these employees have lost loved ones. They've had loved ones very ill in the hospital. You know, we may not have the numbers that they have in New York, but we've certainly lost people. And there are people all across the state who have suffered losses. They have spouses who've lost jobs, they've lost houses. People's emotional well being is gonna be potentially a little fragile. So I think we wanna really take a step back when we're looking at this return to work. Cause I'm with you, Erica. I'm excited about it. Let's just get it over already and get everybody back going in the right direction. But I don't want someone to call us a month from now and say, you have to lock down again because now we got the spike. Like, I want to do it in a way that makes sense.

I totally agree and 100%, and I am more of that, like rip the band aid off and get it over with. But this is not one of those scenarios. And it is really prudent on the employer to be cautious in opening up the door, so to speak, to whether it's all the customers or employees. Well, you and I, I wish we had a crystal ball, but we don't. We don't necessarily know what that back to work plan is going to be as it's mandated from the government. But what we can offer is some guidance to employers as far as what to start thinking about. And there, as we saw with the shelter in place, orders going into place, there are certain labor and employment laws that sometimes are not flexible like we want them to be and don't have COVID 19 exceptions. Unless of course, we receive an executive order that provides an exception, like we saw with the Baby Born Act. So one of the things that I thought about as we were talking just now is thinking outside the box does need to have some kind of recognition of what some of the labor and employment laws are out there that could hamper your ability. So, for example, the 410 workweek, what are some things employers should be just to know in the back of their mind if that's where they want to go?

Absolutely, Erica, you're 100% right. So if you want to do a 410, no more than 40 hours a week, but you're gonna have maybe four tens or a nine hundred and ninety eight, you have to have an election. It's a real election. There have to be ballots, and you have to turn in your election results to the Division of Labor Standards Enforcement. Now, that's if you want to avoid overtime, that daily overtime. Right. Some employers are like, I don't care. I'll pay the two hours of overtime. If you're willing to pay the daily overtime, you don't have to go through the alternative work week election process. But as you just said, most of these wage hour laws don't have exceptions for COVID 19 kinds of pandemics. So what it means is you've got to make sure, for example, that here's something a lot of our clients have suggested. Oh, well, what I'll do is I won't make them take their meal period before the end of the fifth hour. Then I can just have them work seven hours. They can waive the meal period. It'll be so much better for them. Yeah, well, guess what? Depending on what wage order you're covered by, probably doesn't work.

Right.

Even though you're thinking, oh, I could stagger the shifts better if I did this, it's not always going to be something that you can do. And you know, all of this, you have to give your employees notice. You can't say, today's Thursday, tomorrow you're coming back to work. Who knows what their childcare is? Who knows how they've been hobbling through this whole shelter in place. You got to be able to give them some notice and a real direction for how this is going to go.

And that goes back to the planning of a plan. And part of the planning of a plan also includes your communication method and how you're going to communicate it to your employees. The other thing that I wanted to just touch upon, and I have a feeling, Jen, this is going to be one of many parts that we record on the whole concept of getting back to work. And hopefully, as time passes, we'll have a little bit more from our government officials to be able to give a little bit more to our listeners. But, you know, I think that it's really helpful, at least to start encouraging the thinking out of the box and recognizing that there are some of those labor and employment laws like the alternative work week schedule requirement or paying overtime. The other thing, the other two points that just come to my mind on this as employers are thinking a little bit about staggering schedules is as we talked about before, on call pay, like we talked about when we were talking about the on call issue, that's still there. And then predictive scheduling. And I just want to raise that. California does not, but we know that San Francisco does on the predictive scheduling. So that's something also that needs to be in the back of employers minds as they try to be flexible bringing folks back to work and as they try to plan.

That's right. And keep in mind for all the listeners who haven't heard of that term before, in San Francisco, there's a local ordinance that requires employers to give employees certain notice of a change in schedule and they're basically guaranteed hours. So you don't have the flexibility in San Francisco that you have in the rest of the state. So it is important. Just like when we're talking about sick leave, just like when we're talking about commuter benefits, whatever it may be, you have to know where your employees are doing business. You may be subject to a number of different rules because of where they are.

Well, I think this is a great place to end and I know that this is not the last podcast that we're going to have. And my hope is that maybe we can roll out a series on how to get folks back once we get a little bit more guidance on it. So with that, thank you so much again, Jennifer for being here today.

Thank you Erica, I love it.

And thank you all for listening. Hopefully everybody is getting excited to get back to work or if anything to be able to go out and eat at a restaurant again. I have to share Jennifer's sentiments on Till then, thank you all for joining us on the Workplace and please share, comment or tell your friends to subscribe to Cal Chambers podcast at calchamber. Com.