The legal considerations for returning to work

What will the immediate “new normal” look like?

There are a number of scenarios that companies are planning for. In the best case, the pandemic disappears and employers only need to consider whether they need to write (or adapt) policies and procedures for potential future pandemics. In a worst case, they have to deal with recurring “waves” of the virus until herd immunity is achieved.

Questions employers may now be asking include:

• Should they change their workforce structure to a higher proportion of temporary or contingent workers that can be hired, let go, and re-hired more easily?

• Should they ask some of their workforce to work from home permanently?

• What long-term provisions need to be made to deal with sudden out-breaks of contagion?
  

Regardless of the outcome of vaccine and treatment development, or the success of social distancing measures, employers need to prepare for their employees’ return to work by considering their obligations to protect their employees’ rights, safety, and well-being, while also safeguarding their business.

The employment law considerations for returning to work

Laws will vary between countries, and this article explores the following questions to consider when planning a return to work for your employees:

• Can you introduce rotations in order to reduce the number of employees on your premises at any one time?

• If you have reduced your employee base through lay-offs/redundancy, can you gradually re-hire ex-employees, and again let them go should the government impose a further lockdown?

• Should you change the make-up of your workforce to make employment more agile and therefore easier to respond to various government restrictions?

• Can you introduce or extend a “reduced working week” if you need to?

• Do you need special policies for seasonal/migrant workers?

• Do you need new policies for ongoing testing or health screening?

• Can you force employees to use personal protective equipment (e.g., facemasks) at work?

Recommended Actions

1. Review your workforce needs in relation to business strategy
   Map out your workforce and compare it to your likely workforce needs for the immediate future. Identify all the types of workers you use or employ, and identify the employment law implications of any changes necessary.
2. Review your policies
   Review all your policies, not just those directly affected by the pandemic (e.g., sick leave or remote working policies). Decide on proposed changes and consult with your workforce or their representatives as necessary, before implementing the new policies.
3. Create a return to work strategy
   Set out all the considerations, alternations and potential phases.
4. Communicate the strategy
   Communicate the return to work strategy with your employers and suppliers (such as facilities, cleaning and catering suppliers) with enough notice.
5. Implement your strategy
   Implement the strategy and monitor continuously for any future considerations.