Adapting to the “new normal”: Lessons learned and best practices for a post-COVID 19 workplace

Pre-COVID-19, public sector employers generally took a more cautious approach to remote work arrangements, especially when compared to their private sector counterparts.  Budget limitations, management structures and service obligations may have played a role in this reluctance.  However, as COVID-19 has dramatically changed the way we live and work, remote work has become an immediate operational reality for all employers, including public agencies.

Even as public agencies begin to return their employees to agency worksites over the coming weeks and months, they should expect work-from-home arrangements to endure as the “new normal.” The recent proliferation of remote work highlights the need for public agencies to adopt formal remote work programs and corresponding policies and protocols that support an efficient, flexible and safe work environment.

The Benefits of Remote Work Arrangements

Although many public agencies have expressed philosophical and fiscal reservations with the concept of a remote workforce, there is now data and research that illustrates positive impacts of remote work arrangements on workplace operations.  Gallup polling has found that remote work programs can improve employee productivity, performance and engagement; provide desired workplace flexibility; positively impact retention rates; lower absenteeism; lower employers’ environmental impact, including by reducing energy use, solid waste disposal and the employer’s carbon footprint; and attract and retain a broader swath of workers (e.g., millennials).  A 2017 study by the National Bureau of Economic Research (NBER) by researchers at Princeton and Harvard universities also found that employees may be willing to take pay cuts in exchange for workplace flexibility.

Operating in the New Normal

The COVID-19 pandemic and corresponding government-mandated restrictions compelled many public agencies to immediately shut down entire departments and facilities.  As a result, legions of employees were directed to work remotely.  Understandably, there was little time to strategically consider all of the operational impacts.

Now, as stay-at-home orders are or will be slowly lifted, and public agencies begin to invite employees back to worksites, agencies will need to adapt to a “new normal” at the worksite. This will not only include maintaining work and public spaces that allow for social distancing, but also consideration of the continuation of remote work for certain employees.  In addition, it may be efficient and effective for agencies to consider adopting permanent telework or remote work programs that survive beyond the conclusion of the current public health emergency.

As we look back, and also ahead, there are important lessons to take away from this extraordinary operational shift that may, in turn, help better equip agencies for the challenges that lay ahead in this new remote work reality.

• Not All Jobs Are Conducive To Remote Work.  During the stay-at-home orders, some agencies were able to arrange for front office staff to work remotely by, for example, forwarding calls to the staff members’ cell phones.  Some police departments permitted detectives or investigators to work remotely by conducting interviews via Zoom.  While such arrangements may be manageable on a short-term basis, certain job duties are generally not conducive to permanent remote work.  As agencies consider whether to continue to permit certain classes of employees to work remotely, they must examine the full scope of employees’ job duties to determine if remote work is feasible and effective as a permanent or long-term option.
• Remote Workspaces Must Be Conducive To Working.  While stay-at-home orders effectively forced agencies to permit employees who could work remotely to do so, the U.S. Department of Labor’s (“DOL”) temporary regulations concerning the paid leave provisions of the Families First Coronavirus Response Act (“FFCRA”) clarified that even during the current public health emergency, a remote work arrangement is not intended to be a substitute for childcare.   Specifically, the regulations explain that the FFCRA’s leave provisions are only available to employees if they are unable to work or “telework.”  Furthermore, a bed, couch or a workspace that is so small or cluttered that it constitutes a fire hazard, are not proper workspaces.  Instead, such workspaces invite “workplace” injuries and workers’ compensation claims.  Employers that continue to permit employees to work remotely should remind employees that they are expected to be productive when working remotely and should also strongly consider requiring safety inspections of remote workspaces.  Employees should provide a description and photograph of their workspace, or an agency representative can conduct a safety compliance inspection via videoconference.  Employers should also develop safety compliance checklists for remote workspaces.  Such practices will not only help employee productivity, but also enforce safety standards.
• Telework And Remote Work Policies And Agreements Are Necessary.  Almost immediately following the closure of facilities and worksites, many public agencies implemented telecommuting/remote work policies and agreements.

Implementing telework and remote work policies and agreements are critical to ensure that employees understand work expectations in a remote work environment.  Through such policies and agreements, employees acknowledge and consent from the outset of their remote work arrangements that they have the same job responsibilities and are subject to the same workplace standards as if they were at the worksite, including but not limited to codes of conduct, anti-harassment policies and protocols governing communications with supervisors, reporting of hours worked, meal and rest breaks, approval of overtime, and reporting of work-related injuries.  Policies and agreements are also critical to ensuring that standards for remote work are applied consistently across the agency. It’s also important to keep in mind that state labor laws may require that public agencies negotiate with labor unions over the adoption of telework policies during the public health emergency, or at the very least negotiate the impacts/effects following adoption of those policies.

• Remote Work Arrangements Are A Privilege That Should Generally Not Be Afforded To All Employees. Pre-COVID-19, employers may have thought of remote work arrangements to be a privilege, not a right.  Often, this meant that employers conditioned remote work agreements on an employee’s continued productivity and a recent history of satisfactory performance.  During the current public health crisis, although many employees working remotely were on notice that they were expected to maintain productivity and comply with agency policies and protocols, some employees with past performance issues continued to manifest those same issues in remote work environments.  As remote work transitions from an operational necessity to an agency preference, agencies may establish eligibility requirements for remote work based on performance.  For example, remote work may be limited to those employees who had two cycles of a “meets expectations” overall rating or at least one cycle of an “exceeds expectations” overall rating.
  

• Establishing Employee Accountability Measures And Protocols Are Critical To Success.  Agencies should implement measures to ensure that employees are held accountable for their work performance.  Performance expectations should be clearly communicated and agencies should require supervisors and subordinates to participate in regular check-ins.  Such oversight and communication are essential to continuity of effective operations.

Oliver Yee is a Partner and Alysha Stein-Manes is an Associate at Liebert Cassidy Whitmore, one of the largest public sector and non-profit employment and labor law firms in California. They can be reached at oyee@lcwlegal.com and asteinmanes@lcwlegal.com, respectively.