Work can be better post-COVID-19. Here’s what employers need to know

This article is brought to you thanks to the collaboration of The European Sting with the World Economic Forum.

Author: Stephen Ratcliffe, Partner, Employment & Compensation, Baker McKenzie & Julia Wilson, Partner, Employment & Data Protection, Baker McKenzie

• Returning to a physical workplace post-COVID-19 brings a myriad of legal, employee and public relations complexities for businesses;
• To ensure successful hybrid working, critical operational, ethical and cultural questions must be answered by employers;
• Action is needed to address inequities at work exacerbated by the pandemic and longer-term remote working.

When business crises occur (pandemic-related or otherwise), the companies that emerge stronger are those able to flex their business and people to overcome the new challenges they face. The unpredictability and scale of the COVID-19 pandemic has forced the world to adapt to a new way of working, in some cases practically overnight. Now, more than ever, it is necessary to reimagine work and how it is done.

“Forget normal… since the pandemic, everything is up for re-examination”

— Dr. Margaret Heffernan, best-selling author and Professor of Practice at the University of Bath

The return to the workplace

As some countries begin to ease their COVID-19 restrictions, businesses must think carefully about how they can safely reopen their workplaces. For many governments, unlocking the economy is tied to the speed and success of the COVID-19 vaccination rollout, but how far that will assist employers varies globally. In the US, employers are more likely to be able to compel employees to get vaccinated, but in many countries employers are legally unable to require employees to be vaccinated before returning to the workplace.

In many European countries, it is unlawful to even inquire about an individual employee’s vaccination status. At time of writing, the UK and French governments have made it mandatory for workers in care home or health settings to be vaccinated, but these exceptions are currently very limited. For many employers, the issue of COVID-19 vaccinations is a Pandora’s box of legal and employee/public relations complexities with the potential for discrimination, data protection, personal injury, employment law and breach of human rights claims. In practice, the reopening of the workplace will need to be gradual and cautious, with social distancing and heightened hygiene protocols going hand-in-hand with employee engagement and consultation. If employers intend to use vaccination status as a condition of entry to the workplace, they will need to verify where that is permitted and may require a menu of alternative options, such as proof of a negative COVID-19 test.

Hybrid working as the new norm

Flexible working is not a new phenomenon but the trend towards increased flexibility and remote working has, historically, largely been driven by (care-giving) employees. The sudden arrival of the pandemic prompted even the most reluctant employers to consider new agile working options.

Many Fortune 500 CEOs found, to their surprise, that working from home works. While forecasts differ, it is clear that there will be an increase in remote working, whether through individual choice or through a change in company policy or strategy.

“More than 20% of the workforce could work remotely three to five days a week as effectively as they could if working from an office. If remote work took hold at that level, that would mean 3 to 4 times as many people working from home than pre-pandemic and a profound impact on urban economies, transportation and consumer spending, among other things.”

— “What’s Next for Remote Work”, McKinsey & Company, November 23, 2020

Before embarking on radical changes to remote working policies, businesses should consider the many inter-related legal considerations and factors at play including employment law, employee taxation and benefits, health and safety, data privacy and protection, and corporate law and taxation. Critical considerations for businesses include:

• Can the job be performed (effectively) remotely?
• What (if any) limits are there on flexible working? Is it temporary or permanent or part time? Is it restricted to the country where the business operates? There are material tax, employment and immigration questions flowing from cross-border working arrangements Is there flexibility of working hours?
• Who will bear the cost of home working equipment and expenses? What obligations are there on the business or the employee in respect of insurance and what controls does the company have in place to monitor compliance?
• Will the business monitor work performance and productivity whilst respecting employees’ privacy and personal lives? If so, how?
• How will the business monitor working hours, particularly in countries such as France, Spain and Italy, which have the right to disconnect outside of working hours?
• How will the business maintain culture and engagement with those working remotely? Will those at the start of their work journey get the right level of supervision, direction and opportunity to develop?
• How will the business support those employees who find remote working challenging or unsafe, for example, from a mental health or domestic abuse perspective? What measures does the business have in place to look after their employees’ health and wellbeing? What training is in place for managers and employees to identify early signs of problems and escalate or support a colleague who needs help?
• Do IT, data privacy, “bring your own device” and other policies need to be updated or rolled out to facilitate successful remote working?

Fostering inclusion, diversity and equity (IDE)

Creating a diverse and inclusive workforce is a business imperative for global employers. It enables a wider talent pool, helping to plug skills gaps, drive innovation, enhance profitability and improve competitiveness. The pandemic and its disproportionate economic effect on women and ethnic minorities has once again pushed inclusion, equity and diversity to the forefront of the corporate agenda, but unless action is taken, inequity can be exacerbated by the pandemic and longer-term remote working.

“COVID is providing us with an opportunity to spotlight the pre-existing social inequities that have been exacerbated by a health crisis. And so these inequities existed pre-COVID, but they’re amplified in this moment, and giving us reason to do more.”

— Ritu Bhasin, Author and Globally Recognized Expert on Inclusion

How does a business harness the power of inclusion to reap the benefits of a diverse workforce? A crucial element of diversity strategy is to understand the workforce demographic and scrutinize what is happening at every stage of the employment cycle to identify if there are any unfair obstacles in the way. For most global corporations, such barriers will usually be covert, unintentional or the result of historical legacies. Once those obstacles are identified, take steps to resolve them – easier said than done if the obstacles are created by ingrained cultural norms. In many jurisdictions, actions such as diversity monitoring or positive action can be legally risky. For some businesses, the legal risk of being on the wrong side of the law is a sacrifice worth making; others will want to take a different approach.

Alternative actions include considering whether diversity training is current and up to scratch, seeking feedback from employees (underrepresented or otherwise) through anonymous questionnaires and ensuring that the IDE strategy is led from the top down and reinforced through workplace champions. Remember that IDE is not a static concept but a continuing journey. Businesses should take steps to implement a robust programme to monitor the implications of any actions taken and be ready to adapt their approach as needed.

The pandemic has dominated the news and our thoughts for over a year and changed how people live and work globally. Whilst the impact has been devastating in many respects, it has also stimulated positive change in the employment world, refocusing the spotlight on IDE issues and propelling businesses forward in embracing flexibility and reinventing the future of work.