By Christina Jaremus and Katherine Mendez

Seyfarth Synopsis: Governors are already discussing lifting stay-at-home restrictions.  However, certain changes to the workplace that were implemented during the shelter-in-place period may persist.  As Steven Hawking said, intelligence is the ability to adapt to change.  No one knows this better than businesses whose success often relies on quickly adapting to change.

Below are three ways COVID-19 may continue to transform the future workplace and legal issues you should consider.

  1. Telecommuting. When stay-at-home orders are lifted, many businesses may question whether the expense of a physical office is really necessary if remote operations carried on successfully during the shelter in place period.  One of the questions companies will address when employees are allowed to go back to work is whether some or all of their workforce should return to a physical office.

First, if you plan to allow some or all of your workforce to continue to work remotely and do not have a telecommuting policy, now is the time to enact a policy or consider modifications to any existing policies. Considerations include:

  • Which positions does the policy apply to? If certain positions require physical presence in the work place, state so explicitly.
  • Are any restrictions on remote work necessary? For example, under what circumstances can telecommuting privileges be granted or revoked?  Are employees working remotely required to provide additional support to demonstrate their productivity?
  • Reconsider whether additional work-related losses and expenditures are involved in a remote-work situation. Update policies to reflect how the company will reimburse employees consistent with applicable law.

Second, document which positions are not suited for remote work.  The stay at home orders gave companies the perfect test-cases for determining whether working from home was feasible for some positions.  If telecommuting was less than ideal, take this opportunity now to document why remote work is not feasible for certain positions.  Creating a written record may become critical evidence if your company denies an employee’s request to work remotely as a disability-related accommodation after employees have been asked to return to work.

  1. Screening For COVID-19. For employees who will return to an office, many companies will ramp-up sanitation and screening measures to avoid turning the water cooler into a Coronavirus swap-meet.  One such measure may include temperature and/or symptom screening.  Disability-related inquiries and medical examinations are prohibited by the ADA unless they are job related and consistent with business necessity.  However, because the CDC and local health authorities have acknowledged community spread of COVID-19, likely until the spread of COVID-19 reduces exponentially, the EEOC’s guidance tells us that employers may measure employees’ body temperature and ask employees if they are experiencing symptoms of COVID-19 or if they are at risk of exposure.

Employers should carefully train managers and supervisors to ensure that inquiries are confidential and administered evenly among employees.  Further, it is permissible to ask certain employees about their symptoms if those symptoms are COVID-19 related, such as sneezing, coughing, or appearing feverish.  For more information on this topic, see Updated EEOC COVID-19 Guidance: The Commission Adds New Q&A To Help Employers Understand Their EEO Obligations In These Trying Times, available here.

From a wage and hour standpoint, employers should update policies to reflect the compensability of time spent undergoing temperature checks or responding to medical inquires.

  1. Video Interviews. To limit person-to-person contact, employers may consider conducting video interviews, which increasingly involve platforms using artificial intelligence.  As Forbes highlighted in a recent article, video interview platforms on the market can now, “use [Artificial Intelligence] to evaluate a job seeker’s facial expressions and how they answer questions during a recorded interview. The tools then recommend the best applicants to move forward for consideration.”   Below are some legal implications to consider before launching AI to conduct interviews.
    • Determine notice and consent obligations. States are already responding to AI tools with legislation requiring employers to provide applicants with notice of the tool and what it measures and obtain consent from applicants to use AI before the interview (g., Illinois’ Artificial Intelligence Video Interview Act).
    • Find out how the software accounts for potential bias. As Forbes posited, “because of the way the tools are built, critics believe AI could make employment discrimination worse, reflecting ‘institutional and systemic biases,’” and trigger claims based on discriminatory hiring.

For more information on this topic, see Artificial Intelligence is Starting to Shape the Future of the Workplace, available here, or please contact the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Teams.