How Businesses Can Navigate New COVID Restrictions

Dorsey & Whitney

With lockdowns going into effect all over the country again due to the surge in COVID cases, employers all over the country are trying to figure out what to do to prepare for “The December to Remember.” Can you force employees to stay put? Can you penalize them for traveling over Thanksgiving or prevent them for traveling during Christmas? And how about work from anywhere policies?

Aaron Goldstein, a labor and employment partner at the international law firm Dorsey & Whitney, says he has been flooded daily with questions like this as cities start cracking down again and those calls have surged since the holiday weekend just wrapped up. He has some advice for businesses and companies facing more disruptions based on some of the questions that he’s been getting this holiday season:

Says Goldstein: “The U.S. is experiencing the largest surge in cases and the second-largest surge in deaths since the COVID-19 crisis began last February. Initially people were more willing to curtail their normal activities to slow the spread of the virus and ease the burden on the nation’s healthcare system. However, as the COVID-19 crisis stretches into its ninth month, people are desperate for a return to normalcy. Families are fraying with school closures and being forced out of their ordinary routines of activities outside the home. Business owners are panicking as state and federal assistance runs out. Some employees are terrified to come into work while others are desperate for their next paycheck after having been furloughed or laid off.

“What has often gotten lost in this tug-of-war between restrictions and COVID-19 fatigue is any sort of consistent and thoughtful approach that balances these competing concerns. Schools close while movie theatres stay open. Simple low-cost precautions like masks become politicized.

“When navigating the next four or five months before a vaccine is (hopefully) widely available, businesses need to take a clear-eyed approach that maximizes the effectiveness of their restrictions while refusing to give in to the passions and prejudices of its workforce.

“Requiring all employees to wear masks, regardless of a legal mask mandate, is an easy step.

“Creatively scheduling shifts to maximize productivity while minimizing the density of the workplace is also a great idea. Rather than having one 9am to 5pm shift, consider having two 8 hour shifts so that the workplace is half as full. If employees can work from home, they should work from home.

“Employers should prioritize the needs of workers who themselves have health conditions that put them at risk or who live with vulnerable individuals. But finding the office more convenient is not a reason to allow employees who can work remote to return to the office. Employees who disregard restrictions should be warned, and if they persist, shown the door.”

“Employers must also address the risks of having a remote workforce that is increasingly stressed and worn out. There has been a massive increase in data security breaches as employees switch to unsecure home networks and engage in online activity on work computers at home that they would never engage in at work.

“Employers that fail to take common sense precautions face liability both in civil cases alleging negligence and under statutes such as OSHA. While it will be hard to prove that an individual case of COVID-19 came from a particular individual, super spreader events may be easier to track, making liability easier to prove.

“Finally, as state and federal COVID-19 relief runs out and lost wages from botched furloughs and layoffs accumulate, employers can expect an increase in claims.

“We are about nine months into the COVID-19 crisis. We probably have at least another five months to go. Like any marathon, the fight against fatigue is paramount. Employers must not lose sight of their best practices,” Goldstein says.

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