By Erin Dougherty Foley and Katherine Mendez

Seyfarth Synopsis: In light of recent events, the Employment Law Lookout Blog provides some reflection and thought on returning to work in uncertain times.

In February and March we were only just preparing for, and beginning to respond to, the worldwide pandemic. Many of the issues related to returning to work have been identified and addressed for some time now (indeed, in the last month there was a small light beginning to shine at the end of the “getting back to normal” tunnel). At the beginning of May, most employers started to prepare for what all had hoped was some semblance of a “new normal.”  Then, George Floyd was killed and the country exploded — understandably — with grief, and outrage, and, unfortunately, violence. These recent weeks have created new questions and challenges for employers across the nation.

We would be remiss if we did not identify some topics for employers to consider as you navigate these return to work issues.

Respectful Workplaces — employees can’t always check their views at the door. Issues impacting them, their families, and their communities may need to discussed in the workplace. Not all employees will want to discuss these issues; others will. We think it imperative for employers to acknowledge opinions about what has occurred, attempt to understand them, and to give ourselves permission to talk about them in order to disrupt the stereotypes and challenges facing our communities.

Unfortunately, sometimes emotions get heated or conversations veer to a place that are no longer respectful. Employers walk a fine line between allowing the dialog and ensuring that those involved in the communications are not otherwise engaging in conversations that violate company policy, i.e., your code of conduct or anti-discrimination/harassment policy. As we return to work, consider reviewing your policies, training, and messaging, in an effort to ensure that your business leaders are setting the proper tone to encourage and promote respectful workplaces. Now also may be a good time to remind everyone that conduct or communications (either at work or outside of work) that otherwise violates your “zero tolerance” policies regarding discrimination/harassment or violence, your social media policy, or your rules concerning use of company internet and other electronic communication systems need to be reported, will be investigated and — if warranted — result in disciplinary action. As always, employers have the responsibility to ensure that all employees are free from all forms of harassment, discrimination and retaliation.

Also remember that some state laws specifically protect political expression. For example, California has a far reaching prohibition on employers preventing employees from engaging in political activities, which the courts have interpreted broadly. Indeed, “political activities” are not narrowly confined to partisan activity, but cover any activities involving the support of a candidate or a cause, including participating in social movements such as the gay rights movement. While California’s law is the most broad, other states have similar laws and employers should, therefore, be careful before addressing or disciplining speech in the workplace.

Employers also must consider the content of these conversations and whether they are “protected concerted activity” under the National Labor Relations Act. The NLRA gives employees at both union and nonunion workplaces the right to discuss and share information among themselves and with outsiders to try to improve their working conditions and/or to address work-related issues. It doesn’t specifically protect “political” speech, but speech and related action are protected if they are both (1) concerted (i.e., made by a group of employees or by an individual who is acting on the authority of other employees or who is trying to induce group action); and (2) related to terms and conditions of employment. Any instruction to stop certain communications, or any decision to issue discipline based on those communications, should be carefully considered in order to determine if the speech is considered protected concerted activity.

Safe Workplaces — many employers have operations located in places where protests occurred. While hopefully all future marches will remain peaceful, when violence occurs, a myriad of employment issues are impacted. First and foremost, be safe: if necessary, close operations, send employees home, take all appropriate security precautions. But also do so with an eye toward issues important to front-line workers:  reporting pay, use of PTO (or other types of excused absences), etc.

Relatedly, some employees (either because of COVID-19 or other safety concerns) may refuse to come to work even when employers are ready and able to have them back. Remember that some states and individual cities have enacted anti-retaliation laws and guidelines that prevent employers from taking adverse actions against employees who express concerns about returning to work. In those instances, if a brief leave of absence would allay the employee’s concerns about working in an impacted area, that could be a feasible option. Certainly, if an employee has suggested that the inability to return to work is caused by a health condition (compromised immune system, or anxiety related to recent events), providing leave also could be a reasonable accommodation.

As discussed below, having a well thought out return to work plan will help employees feel more comfortable returning to work and confident that their employers have considered health and safety issues before asking employees to come back to the workplace. Each employer must determine where the balance point is for the company and their workers, recognizing that short-term, temporary options may provide much needed peace of mind and better employee relations in the long-run.

Healthy Workplaces — while states are “opening up” — and some semblance of “normal” may be available down the road, the very real concern of either a “second spike” of COVID-19 or winter flu season may bring additional health concerns. Be sure that employees are trained on CDC/state/local requirements and expectations for when they return to work. Provide all recommended PPE, consider office reconfigurations to allow for social distancing, discuss staggering start times and work weeks to provide employees with the needed space and social comfort to feel safe. Talk with your benefits providers to determine if there are any additional mental health resources that can be offered to employees who may need extra support during these difficult times.

Getting to the Workplace — in certain metropolitan areas, many workers rely primarily on public transportation to get to work. However, one of the CDC recommendations to slow the spread of the virus is to avoid using public transportation. Similarly, in the past weeks, cities like Chicago have halted public transportation when spikes of violence have occurred. Employees who rely on public transportation may be adversely impacted by these issues. Under normal circumstances, how an employee gets to work is not the employer’s responsibility, as long as the employee is able to maintain regular attendance. However, in light of health and safety issues, employers may wish to consider if there are other, viable, transportation options for these employees, additional resources to work from home, parking options, etc.

There may also be solutions you have not yet considered. We recognize that none of these challenges have quick and easy solutions. Indeed, there is likely no “one size fits all” answer. Each employer, each situation, each employee issue has its own set of unique characteristics and circumstances. We encourage everyone to be flexible. Consider options outside the “norm” and work to try to attain a reasonable solution. Be safe. Be well. Take good care.

NOTE: This blog expresses the opinions of the authors and does not necessarily represent the opinions of the firm as a whole.

If you have questions or would like to discuss these or other return to work issues, please contact the authors, a member of the Firm’s “Return to Work” Team, or your Seyfarth attorney.