Going forward in the new normal

For this offering, we are grateful to have a guest blogger, labor lawyer Denise Blommel, has again weighed in on some pertinent issues as we go forward into the new normal. Thank you, Denise.

Jim Collins is one of my favorite business authors.  His 2011 Great By Choice: Uncertainty, Chaos, and Luck – Why Some Thrive Despite Them All describes the “Black Swan.” A Black Swan is a low-probability disruption, an event that almost no one can foresee. No one knows when or what a particular Black Swan will be.  However, there is close to a 100% chance of some Black Swan event happening at some time.  The key for any organization is to prepare for unexpected events and bad luck before they happen – by building shock absorbers and making disciplined decisions.

We are in the midst of the COVID-19 pandemic – probably the largest Black Swan event in our lifetimes.  Our hope on the horizon is for a vaccine that will be effective and end these crazy times.  Meanwhile, our legal industry is essential so many of us have continued to work, albeit remotely.  Zoom, Skype, FaceTime, GoToMeeting, and other video applications have been both life and client-saving.  The Cloud, tablets, laptops, smart phones, and other devices have come to the rescue.  It appears that The Grid (our national electrical system) and the satellites (Internet) have withstood the mass onslaught of usage by workers, their families, college students, and school children.

As Arizona gradually reopens, what shock absorbers and disciplined decisions do we lawyers need to make?  A good place to begin is the thorough guide for reopening by the federal Occupational Safety and Health Administration at https://www.osha.gov/Publications/OSHA3990.pdf.   A helpful seven-step plan for reopening is contained in the July 13, 2020  magazine Control Engineering https://www.controleng.com/articles/seven-steps-to-plan-for-re-entering-the-workplace/?oly_enc_id=0573F4152045A0T.

  1. Establish your team.  For those of us in small firms, the team will be the lawyer and a responsible employee.  For those of us in larger organizations, the team needs to be multi-disciplinary, including management, human resources, and marketing.
  2. Check governmental guidance.  Here is where we must stay apprised of what the U.S. Department of Labor (OSHA, FFCRA, Wage & Hour), the Equal Employment Opportunity Commission (EEOC) and the Centers for Disease Control (CDC) are doing because the law, rules, and guidance rapidly change.  The latest CDC guidance on reopening is at https://www.cdc.gov/coronavirus/2019-ncov/hcp/return-to-work.html  for Healthcare Personnel and https://www.cdc.gov/coronavirus/2019-ncov/hcp/disposition-in-home-patients.html  for other personnel.  If your Firm has 15 or more employees, please also consult EEOC’s latest guidance at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.  Remember this COVID-19 is the novel coronavirus – well named because no one has all the answers about how it spreads, what can be done to cure it, and what can be done to stop it.
  3. Supervisor training.  This is where we as lawyers really need to pay attention to our employees.  Everyone is justifiably skittish about being in any contact with other people.  All the masks, plexiglass, six-foot taping on the floor, and Clorox are not going to matter if employees are afraid.  You also need to enforce the new rules – wear masks, wash hands, disinfect surfaces, and keep social distancing.
  4. Set up a health station.  The reception desk can take temperatures of all clients and visitors – and even employees.  Before a client comes to the office, you can ask him/her certain questions such as whether s/he has symptoms of COVID-19 (cough, fever, shortness of breath), has been out of the country or been exposed (defined as more than 15 minutes within six feet of a person who is positive for COVID-19).  Have masks available for staff, clients, and visitors.  Prepare clients for social distancing.
  5. Plan your space.  This is where UV light and ventilation enter the picture.  Check out the relationship among UV light, heat, and humidity upon the airborne decay of COVID-19 at https://www.dhs.gov/science-and-technology/sars-airborne-calculator.  If you have a large office, you may want to direct foot traffic in the halls and walkways.  Reconsider signage in your office.  Be mindful of where the desks and chairs and tables are situated.
  6. Clean your space. (Or, why I’m so happy I bought Proctor & Gamble stock years ago.)  Buy those cleaning supplies and maintain a log.  This is the perfect time to throw away a lot of stuff you don’t need.
  7. Coordinate with your landlord.  Or, if you own your office space, coordinate with your tenants.  Be sure everyone is on the same page about health and safety.  If you have employees, you owe them a workplace free of recognized hazards under Arizona (and, if you have ten or more employees, federal) OSHA law.

Also, please be aware that the Families First Coronavirus Response Act (FFCRA) remains in effect throughout 2020.  If you have less than 500 employees, be sure your FFCRA poster is on the bulletin board and that you are implementing the paid emergency sick leave and paid Family Medical Leave for those employees who fit within the narrow parameters of FFCRA.  See the U.S. Department of Labor’s website at https://www.dol.gov/agencies/whd/pandemic for all the details.

I am interested in your thoughts about the effect COVID-19 has had upon the workplace.  My belief is that remote working will become a new norm, instead of an infrequent job benefit or accommodation under the Americans with Disabilities Act.  I also wonder about the future of crowded events (Cardinals, Suns, Coyotes, Mercury, Diamondbacks, concerts, Spring Training).  What will Arizona’s hospitality industry look like a year from now?  Will individuals continue to work for low wages, especially given that many low-wage jobs (grocery and pharmacy clerks, cleaning staff) have been literally lifesaving during this pandemic?  I would like to hear from you!  Please email me at denise@azlaborlaw.com with your input.

Stay safe, stay strong.  We will get through this.

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