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,” Bruce Sarchet, shareholder at Littler Mendelson, said. “It’s unprecedented.”
But as many employers have figuratively rewritten the workplace playbook, they haven’t done so literally. “Some clients are asking if they need to make a full set of comprehensive changes,” Susan Gross Sholinsky, member of the firm at Epstein Becker Green and vice chair of the firm’s national employment, labor and workforce management steering committee, said. “I think some of the items we’re training employers on right now … are not meant to be permanent.” She added that, as 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, Sarchet said. 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,” Sarchet said, 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,” he added.
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, according to Sholinsky. 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,” Sholinsky said. She also noted that 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; experts who previously spoke to HR said 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, Sarchet said. Sholinsky agreed, adding that 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, Sarchet said. Remote work has transitioned from a choice to something mandatory, meaning that the onus has shifted to the employer to set standards, he added.
Similarly, Sholinsky observed that 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,” she said. “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, Sarchet said. Information confidentiality is also important to stress to employees whose jobs have never been remote before now, Sholinsky said.