21 April 2020 - Post by:Sarah Henchoz
It is fair to say that the last few weeks have been challenging; for the purposes of this blog I am talking only from a workforce planning perspective, recognising that, for many, the challenges have been far greater professionally and personally. We have all had to quickly get acquainted with very new concepts (who had heard of the word “furlough” before the beginning of March?), deal with constant and often inconsistent Government guidance when advising on how to manage the workforce during this period, and support businesses who are having to make very difficult decisions at pace. Of course, all this has been necessary while grappling with remote working, and supporting employees who may be struggling with anxiety, loneliness and job insecurities. However, we have adapted and have now entered a relatively calmer phase as workforce plans have been implemented (at least for the short term). However, we may be in the eye of the storm and, as we consider how things will be in the “new normal” when we start returning to the workplace, it is clear that this reintegration is going to be just as challenging, if not more so, than the lockdown.
We have talked to clients about what they consider the main challenges will be, and have set out below our thoughts:
1 – Managing the return of employees
How will the return of employees be handled? Obviously, much will depend on the wider approach the Government takes to reintegration, but we doubt that there will be a wholescale return. It is more likely that only those whose roles require them to be in the office/workplace will return first, with others who can work remotely being asked to continue to do so. Deciding which employees are essential to restart on-site activities will be difficult, given that some employees may be very keen to return, and others less so. Some companies are considering split teams whereby some employees attend the workplace for one week, and the second team attend for the second week, as was trialled when the pandemic first impacted the UK. Others are looking at mixing remote working with limited time in the office.
2 – Health and safety
Linked to the above, what measures does an employer need to put in place to ensure the safety of those who return? Social distancing is likely to be around for some time yet, but this will be easier to implement in some industries and in some roles. Many employers are considering securing immunity/antibody testing kits so that employees can be tested for Covid-19 before they return to the workplace. However, this raises a number of issues: can an employer compel an employee to submit to testing, how do you manage the privacy and data protection issues involved in processing employee’s health data (special category data for the purposes of the GDPR), how will the testing be done, and who will conduct the testing.
It is useful to monitor what our European neighbours are doing in this regard, with certain jurisdictions already publishing guidance on the ability to test employees. For example, in Spain and Italy, the governments are against such testing in the private sector, not least because it is considered that test kits should be reserved for use by those in public services such as healthcare. An employer who stockpiles test kits may well find themselves the target of negative PR.
In Germany, however, the German Federal Ministry of Labour and Social Affairs last week issued a new Covid-19 occupational safety standard, setting out a comprehensive set of standards that companies should adhere to pursuant to which temperature screening may well be possible, and it will be interesting to see the approach taken by the UK Government in this respect. Aside from testing, the need for clear instructions on increased hygiene requirements and how to ensure appropriate sanitation is in place will be important – things we took for granted like shared office space and eating in the workplace will be a challenge.
3 – Mental health
Mental health has been a real issue for many during the lockdown, and for some the prospect of returning to work may be even more worrying than being at home dealing with feelings of loneliness and anxiety. Some employees may be very worried about getting back onto public transport, being back in close proximity with colleagues or just having to resume a “normal” working day. An employer who wants reintegration to be as smooth as possible will be very much aware of these issues, will have a clear communication plan in place to allay concerns by setting out what they plan to do to help employees, and will also have a comprehensive support programme to help those who are struggling to deal with the return to the workplace. Employees may have suffered bereavements during this period, and may need additional support to help them manage their grief, particularly in situations where they were unable to be with loved ones during their illness or to attend their funerals.
4 – Salary
Businesses who have introduced measures such as salary reductions or deferrals as a result of the economic impact of the pandemic will need to decide if these measures remain necessary and, if so, for how long. Employees who may have reluctantly agreed to these arrangements while under lockdown, may be more likely to challenge these once they are asked to return to a more normal working pattern. Therefore, employers will need to justify any decisions to prolong them or to put in place new measures, ensuring employees are properly informed (and, where necessary, consulted with) to ensure there is a clear understanding of the rationale.
5 – Flexibility
At the outset of the pandemic, I blogged about the fact that the lockdown could herald the start for some, and the continuation for others, of a greater acceptance of remote working, taking us firmly into a new era of flexibility. It is clear that, through the use of technology, there is a significant amount that can be done virtually rather than face-to-face. However, some clients we have spoken to worry that there may actually be a backlash against remote working as employees rush to reconnect with each other, and perhaps fear that they need to be physically present in the workplace to justify their role and avoid redundancy. Will managers feel employees have “had enough time sitting at home” and now need to “step up to the plate” again? How will this impact those who need flexibility, particularly those with carer responsibilities (which may well have increased in light of the pandemic)? It is important that managers understand the risks of such claims being made and how they should be dealt with under internal procedures, not least because they may well constitute protected disclosures for whistleblowing purposes.
There is a lot to look forward to as we work towards reintegration, but there is also much to think about in order to manage this process effectively, responsibly and supportively. We will be posting more on this in the coming weeks, but would love to hear from you to understand what plans you are considering, and to discuss with you how you might navigate some of the risk areas identified above.
Please do reach out to any member of the Allen & Overy employment team to discuss.