After COVID-19, the challenges of the modern workplace have inexorably changed in ways invisible to most.  Here’s a guide to some of those challenges, and what can be done about them.

Many of the changes that are happening in the workplace as a result of COVID-19 are obvious, such as cost-reduction measures and increased telecommuting.   Yet, there are also less visible, but even more important, changes I see occurring in the workplace as a result of the national health crisis.  

“E.Q.” and Leadership Skills Are More Important Than Ever

The development of leadership skills such as learning to communicate inclusively and spotting hidden biases in one’s own conduct has become  paramount in the #metoo era.  Yet, in the new pandemic workplace, these skills have increasingly become the most accurate predictors of whether someone can successfully lead an organization and its employees during this time.  Leaders who have a high emotional quotient “EQ” (either innate or learned through coaching) will be particularly well poised to lead during a time of high employee stress and major organizational change, in which an unprecedented level of discussions around employee health and disability must occur simply to keep a business functioning. 

These are tricky subjects under the best of conditions, but even more so during a time of national health crisis with its rapid legislative change - particularly so while organizations are still reeling from the impact of the #metoo movement, all the new laws it introduced, and the personal transformation it required of many leaders in order for them to stay relevant to the non-white male workforce.

Yet leaders who have done the work to become more self-aware, empathic, and able to see the blind spots in their own conduct, will see the pay off now that they are able to act in ways that allow them to avoid alienating others when discussing delicate, and potentially actionable, topics.  In the new workforce, such leaders gain increasing credibility and impact from having learned how to lead in a way that has appeal to many different experiences.  In sum, these leaders will have great advantage in trying to navigate today’s workplace where COVID-19 has added another layer of potential “difference” among employees: this time around health and disability status.

Health, Disability, and Accommodation Discussions Will Never Be the Same

As stated above, COVID-19 has introduced health and illness as a daily discussion in most places of employment.  Up to this point, many employers have treated such topics as taboo because they fear a discrimination and retaliation lawsuit or a claim for violating the Health Insurance Portability and Accountability Act (“HIPAA”).  Yet the new federal and local leave laws require an unprecedented volume of conversations around employees’ health and the health of their loved ones.

In addition, now that so many businesses are successfully operating remotely, an employer’s argument that working in the office is an essential part of the job will be hard to make. I would argue that the bar to claiming “undue burden” in complying with employee accommodation requests is now higher given that many employers have successfully made do with working adjustments they have never contemplated.  Necessity is the mother of invention and once developed, those “inventions” may be hard to roll back.  However, this may be helpful for the many employers who will need to craft creative accommodation solutions for the masses of employees who won’t be able to return to work even after the shelter-in-place orders are lifted due to childcare, health, or COVID-19 exposure considerations.  In addition, requiring an organization to work on its problem-solving and flexibility skills in response to a health crisis also positions it well to pivot when new health or accommodation situations arise.

Data Privacy Finally Get its Due

Those of us who practice data privacy law have been advocating its importance long before COVID-19.  The emergence of the California Consumer Privacy Act (“CCPA”) helped promote the idea that protecting and categorizing all employee and client data is vital to the long-term survival of an organization.  COVID-19 may have much the same impact as the CCPA when organizations realize their current systems are inadequate for tracking or securing the important data they contain.

For example, responding to and accommodating COVID-19-related requests for leave and accommodations means that employers will be collecting, discussing, and retaining more data around sensitive personal information than ever before.  Employers were recently granted the right to take employee temperatures and even test for COVID-19 in some circumstances.  How does an employer safeguard these results?  Likewise, how does an employer handle the fact that those employees who are considered “at risk” of having particularly dire consequences from contracting COVID-19  may have to disclose health conditions they previously kept private in order to request continuing to work from home when the current shelter-in-place orders lift? No matter how you slice it, employers will now have to retain very sensitive data about their employees that they didn’t have before.

In addition, employers who have not considered how to electronically protect confidential information and trade secrets from outside acquisition will be forced to do so now that virtually all employees are accessing business networks remotely (and often without proper security measures).  Securing a single server is no longer a panacea for ensuring data privacy (if it ever was). 

Ideally, employers will now start the process of data mapping and then consider how to secure data that legally requires protection.  Otherwise, they will be subjecting themselves to needless lawsuits.

Workplace Complaints and Investigations Will Look Different

Many attorneys who conduct workplace investigations have found their offices to be unusually quiet since the beginning of the shelter-in-place orders.  Part of this phenomenon indicates that employers are in triage mode and dealing with HR issues is on the backburner.  But it also likely suggests that fewer complaints are being made.

It makes sense, actually.  Often workplace complaints are made in part due to personality and values clashes between two key employees or a key employee and the rest of her team.  When people are not interacting in person day-to-day, tensions may decrease.  Also, while people are in survival mode, their priorities change, and their expectations of the workplace evolve.  Some hoping for an optimal work environment previously are now just happy not to be laid off.

But rest assured, individuals will assert their right to complain once again.  In the future, however,  these complaints may center around the “Happy Hour” calls that occur when work teams liquor up and socialize online. Inappropriate comments will still be made, but this time they will be heard by the many others who are present on the call.  People may also more closely scrutinize email (a medium of communication already rife with potential for misunderstandings) and other written communication.  When there is no in-person interaction to balance out negative inferences that might be drawn from the written word alone, tensions rise.

Suggestions for How to Respond to Today’s Workplace Challenges

Giving employers guidance in such unprecedented times is tricky. Legal requirements are changing daily, and this is one time when the flurry of new employment laws does seem to be a reasonable response to the urgency of the workplace situation.

Therefore, if you can, consult an HR professional or attorney often and refer regularly to guidance from the Centers for Disease Control and Prevention, Equal Employment Opportunity Commission, Department of Labor, Occupational Safety and Health Administration.  Be sure to also review the many local ordinances that have recently passed, as these may contradict state and federal law.  This is an especially tricky area as employees may now be working from home in a different city or state than where their employers operate, granting such employees differing rights. Therefore, an already complex legal landscape  (revolving around leave and disability) has become even more challenging.

If you are unable to afford legal help, good legal blogs will keep you up to date on the arising issues in the workplace and what to do about them.  For example, you can subscribe to MLG’s blog here.  

Consider coaching employees and managers on leadership skills such as  how to successfully have difficult conversations.  A trained outside coach, ideally with a legal background, may be best suited for the job by advising on how to communicate well when legal consequences are at stake.

Be flexible and diligent in accommodating employees because new leave laws are increasingly requiring that.  In addition, accommodating employees who need it is likely the best way to keep the workplace safe by keeping at risk and sick workers at home.

As always, investigate claims of discrimination, harassment, and retaliation quickly to avoid any appearance of tolerating misconduct during such a vital time. Remember that workplace investigations can easily be conducted with the phone or videoconference.  Some employers even prefer this method when using outside investigators because it can cut down on travel and wait times and thus cost. 

Lastly, now is the time to get up to speed on cybersecurity and protecting employee and company data.  This will prevent needless lawsuits and economic loss at a time when employers can ill afford it.

Author: Diana Maier, Founder and Partner.

The Maier Law Group is a boutique employment and data privacy firm that specializes in conducting workplace investigations, providing executive coaching, training employees, mediating both courtroom and workplace disputes (between two conflicting employees), and advising and counseling employers on HR and data privacy issues.

This article has been prepared for general informational purposes only and does not constitute advertising, solicitation, or legal advice. If you have questions about a particular matter, please contact the Maier Law Group directly.