‘It’s Just Breathtaking’​: How a Turbulent 2020 Is Likely to Impact HR Policies In The Long Run

Policy revisions are sure to come, but not all will necessarily be permanent.

The end of a year is typically a time for businesses to take stock of their successes and failures as well as the major turning points that defined them. In 2020, however, a succession of world-changing events may force those conversations sooner than usual.

The narrative, at least in the U.S., seems to have settled on a singular thread: a pandemic, an economic recession and a critical moment of protest against systemic racism and police brutality — each of which is ongoing. Employers made on-the-fly changes in the form of furloughs, layoffs, introductions of safety protocols and other operational shifts. For those that survive, how will 2020 change core HR policies moving forward?

For now, the answer to that question is proving difficult to assess. On one hand, today’s compliance landscape is unlike anything some management-side employment attorneys have ever seen. The breadth and the scope of it, it’s just breathtaking………….it’s unprecedented.

But as many employers have figuratively rewritten the workplace playbook, they haven’t done so literally. Some of our clients are asking if they need to make a full set of comprehensive changes. We think some of the items we’re training employers on right now … are not meant to be permanent. As our clients consider whether to make changes to a handbook or introduce a separate set of policies specific to current challenges, we’re leaning toward the second.

The ‘most significant development in HR’

The COVID-19 pandemic prompted passage of the first federal paid leave law for private-sector workers in U.S. history, the Families First Coronavirus Response Act (FFCRA). Still, enforcement of the law is the subject of ongoing litigation, and the FFCRA applies only to employees of smaller businesses and only until the end of the year.

Those limitations spurred some state and local governments to adapt “gap laws” and similar actions to expand paid leave availability. For example, California Gov. Gavin Newsome signed an executive order to provide supplemental paid leave to food sector workers at employers with more than 500 employees nationwide for circumstances related to COVID-19.

Paid leave laws are probably the most significant development in HR in the last 12 months, but the temporary nature of the laws means most employers won’t directly change their handbooks to reflect the provisions. A lot of businesses are going to put in some temporary policies and try to muddle through this compliance challenge.

Another reason employers might not opt to change handbooks to reflect paid-leave updates is that many have local practices sections incorporated in those handbooks. Moreover, employers in jurisdictions like New York have had to update handbooks on a frequent basis in recent years amid a trend of paid-leave laws.

Nowadays, if you don’t update it at least once a year, you’re almost guaranteed to be out of compliance. Some of our clients have opted to put clauses into their time-off policies stating that, “if time allocations under state or local law exceed what’s under this policy, employees will be entitled to all leave under applicable law.”

That said, paid time off is likely to pose challenges for employers if employees wait to use guaranteed leave later in the year, and the pandemic could lead to headaches toward the end of the year as workers scramble to take accrued time off. Employers might want to encourage workers to take leave sooner than later. Employers may also opt to change PTO carry over rules to permit taking accrued leave in 2021.

Mandatory remote work adds ‘different dynamic’

The movement toward remote work during the pandemic added a “different dynamic” to the usual telework process at many companies. Remote work has transitioned from a choice to something mandatory, meaning that the onus has shifted to the employer to set standards.

Before the pandemic, many policies framed remote work as a privilege with language that accompanied this view. A lot of that is really not applicable at this time. The context around these is changing.

While existing policies may have provided a framework in the early months of 2020, employers will still need to pay attention to items like working off the clock, working overtime without authorization and getting home office expenses reimbursed. Information confidentiality is also important to stress to employees whose jobs have never been remote before now.

Two other areas weigh heavy on remote work policies: harassment and accommodations. We emphasize the former in the context of video conferencing tools like Zoom, and we suggest modifying harassment training to reflect the reality of working from home: Are people dressed? Are they saying appropriate things in the background?

As for the second item, it may be more difficult these days for employers to claim that remote work arrangements for certain white-collar roles would pose an undue hardship for them. Employers should apply an interactive process for any telework accommodation discussions.

Still, a remote-work standby — written agreements — remains relevant. That’s a place where handbook language is important.

Creating anti-racist policies

An international conversation on social justice, police brutality and racism have emerged following the killings of George Floyd, Breonna Taylor, Ahmaud Arbery and others. Employers across industries have sought to address these issues, but authenticity is a concern.

Employers may want to introduce more inclusive policies, but policies alone are not a guarantee that employees will feel comfortable reporting harassment, discrimination and similar issues. People need to know they can go and talk to HR [or] a supervisor.

Addressing systemic racism in particular may mean confronting discriminatory policies, either formal or informal, embedded in an employer’s culture.

One such talking point is natural hair discrimination. Requirements or even expectations that a person of color style their hair a certain way to conform to expectations of “normal” can indicate a deeper cultural issue. States including Virginia and New York have banned hair discrimination in recent years.

Similarly, employers may want to make workplaces more equitable, but transparency is a necessity. We use the example of pay equity: clients may believe wage gaps between racial groups don’t have anything to do with race, yet unconscious bias could still be at play if such gaps are found across the board. We recommend employers that admit a problem exists and inform employees consistently about the steps being taken to correct it.

Employee resource groups, task forces and councils can help, and each can enlist employees. Employers should want them to help build those policies. Diversity and inclusion initiatives in particular are most effective when employers have passionate people who align with company goals working to formulate and implement them.

We also believe that holding spaces for employee discussions about race in the workplace is “extremely important,” and participants can not be dismissive of the experiences of employees of color, nor can they debate whether these experiences happened. Employers should instead seek to validate these experiences.

You can do things from a company perspective that will shift hearts and minds. Be bold and make sure that people understand their value.

Do you need a communicable disease policy?

Reopening efforts continue to look different depending on where an employer is located, and in some jurisdictions, that reopening has been premature. Local and federal regulations, like those from the Centers for Disease Control and the Occupation Health and Safety Administration, present challenges, as do local public health orders, but an overall shift to strengthening safety protocols may be a strong long-term trend.

We are going to see most larger businesses putting more and more in their handbooks on workplace safety in general. That’s not going away.

Communicable disease policies may be one policy revision employers make, and some are already focusing on solutions like contact tracing to enhance safety. But it’s important to remember that COVID-19 will not present the same challenges as other diseases. All of these situations are different. Employers need to be careful about including too much, especially things that are specific to this pandemic.

Shorter-term policies can also be used to address personal and business travel restrictions as well as restrictions on workplace visitors. A long-term strategy on cross-training, however, might help employers better prepare for future disruptions.

We recommend our clients involve multiple teams in formulating stronger safety policies. Real estate and facilities teams, for example, can help implement social distancing guidelines and determine whether workers have access to sufficient personal protective equipment. Marketing teams can help track customer demand and how operational shifts can best respond to that demand. In-house counsel can aid with compliance efforts.

Employers, however, would be mistaken to assume that having fewer workers on staff — particularly if they have conducted layoffs or furloughs — justifies a smaller HR operation. We’ve had clients say they can get by now with less HR, but experts warn that this is not true.