Ross Gianfortune
This is GovExec Daily, where we bring you the federal stories that really matter.  It's March 31, 2021 . I’m Ross Gianfortune.

Ross Gianfortune
The widespread lockdowns nationwide began over a year ago and many workplaces are still working remotely. While many workplaces are exploring hybrid situations going forward, many will ask employees to return to offices soon as more people are vaccinated.

Both employers and employees will have to navigate a new world as they come back to offices in the coming months. Safety will, of course, be paramount, but different people consider different levels of safety to be enough. Firms will have to balance liability with office culture as a return to offices comes closer. As the world returns to normal, defining a normal workplace will be a challenge for many employers.

Joining me next to talk about the return to in-person work will be David Barron. He is a labor and employment attorney at Cozen O’Connor and, after a short break, we’ll discuss what employers will be looking at as everyone makes their way back to offices and what normal might resemble in 2021.

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Ross Gianfortune
As the United States vaccinated rate rises, the “return to normal” will be back on so many people’s minds. Many of us who work in offices haven’t been to those offices in a year or more and the office look very different than it did in 2020, not to mention the changes in how we work with our coworkers and managers. 

David Barron is a labor and employment attorney at Cozen O’Connor. He’s here to talk about what employers will be looking at when employees make their way back into office, and what normal might resemble in 2021.

David Barron
Thanks for having me.

Ross Gianfortune
So, a lot of offices have implemented, like safeguards early in the pandemic things like hand sanitizers and, you know, more cleaning cycles, you know, from an employer standpoint, how long do you think that will continue. And how long do you think that will be something that employers want to provide.

Unknown Speaker  1:04  
Yeah I think it's gonna depend a lot on what type of business you're in, and where you're at, geographically, what we've seen and what's interesting is we've seen this patchwork of regulations and guidelines depending upon what state you're in, for example, you know, Florida, might have very different requirements than California or New York. We are about to see probably in the next few weeks for the first time, a emergency standard or basically a regulation from OSHA, which is going to set forth some requirements for the workplace, up until this point we've just had guidelines. And so that's really really important to see what OSHA requires for example OSHA might say, all employees have to wear facial coverings if you're within six feet in every workplace, right, which would be new. They've been recommending that CDC has been recommending that this would be the first time we might see an actual regulation approach or that would require things like that.

Ross Gianfortune
The mask, you know, you mentioned that mandates that this course has been fluid certainly early in the pandemic, but it's, it's kind of been part of our lives, certainly since the summer, employers start requiring people to wear bass or suggest them. I mean, you know obviously geography matters, but how do you kind of see that going forward when people start getting vaccinated.

David Barron
Yeah. So, again, I think there's a couple questions here. One is what is the employer are required to do what must the employer do and depending on again geography and industry. In many places an employer must have employees wear facial coverings. And then the question is okay if, if it's not required, should the employer, require facial coverings again every employer has to look at their individual workplace and decide, you know what's best for them. For example if individuals working by themselves in offices, you know, under CDC and OSHA guidelines that person wouldn't be required to wear a facial covering, and then you have to deal with issues like accommodation problems you may have employees who can't wear a mask because they have some sort of issue, medically, you know, so you may have to accommodate that person, what does that look like. So masks are unfortunately we're just one of those issues that has been just a complicated one for employers, you know from the beginning, and you know it seems like the laws and the guidance keeps changing keeps changing.

Ross Gianfortune
So sort of broader kind of bird's eye. People are going to be back in offices in fact I'm going to be doing some work in our office in a few weeks, What's the kind of employer responsibility level I know I got from our HR a long list of things I have to do what where do employers kind of see themselves as far as being responsible.

David Barron
Yeah and again I think there's a long list of things and OSHA might have something to say about that very shortly. It's the standard things like distancing you know how are you going to handle lunch, or is there a cafeteria where employees would normally get together. Are you gonna allow that are you going to reinforce points to spread out meetings or are we going to continue to have meetings by zoom even people in the office so you know that's pretty common now even in my office, if we're on a phone call with two or three of us will will still be on a phone or zoom and not together in a conference room so I think you're going to continue to see distancing, you're probably going to continue to see the temperature checks and wellness checks that have been pretty standard. Going back since you know about a year now, and as even as we see vaccinations happening which is great. I think it's very likely that we continue to do all those things, until we have some really firm guidance for employers on when we can stop doing this.

Ross Gianfortune  
We spoke to some doctors and they said, those guidances may not even be in the offing, you know, we may just some things will just be going on in perpetuity, but sort of building on that. It's sort of uncomfortable but you know how much can employers, protect themselves from potential lawsuits, as people are coming back to the office isn't just putting in these kind of strict regulations.

David Barron
Yeah for legal liability standpoint, a couple of couple of concerns from US employers is always, always want to protect the safety and health of their employees right I mean a good employer does. And, but, as a practical matter, the law is very limiting on employees being able to sue if they get sick or injured in the work in the workplace, there's worker's comp. So for the most part, if an employee contracts COVID in the workplace, they would be limited to whatever workers compensation benefits, they would be entitled to under under the state law, some states have exceptions for very extraordinary circumstances like gross negligence or unintentional exposure, but that's usually not going to be the case. So, from a liability standpoint, the real, the real liability that most employers are worried about would be OSHA fines investigations right because that's, that's a concern. And then also all of the accommodation issues and retaliation issues, and just the, you know, employees asking for things and trying to accommodate every employee has their own concerns when it comes to COVID, you know when you have some employees who don't want to wear masks some to do some want to work from home, some don't care, so just trying to mesh all of those different beliefs and opinions in the workplace without people being retaliated against or discriminated against, that's really the challenge that most employers are wrestling with.

Ross Gianfortune 
So to that end, you know, this is again a little bit squishier. We're doing this over zoom. We, in our shop, have been working remotely since last March so over a year. I think most places are. But office culture is very different in remote situations that is an office. How can employers kind of recreate that kind of pre pandemic office culture are things just different forever.

David Barron  
Yeah, it's an interesting question and I think one that companies, especially at the higher levels are thinking very strategically about how to adapt to this new normal. And you know you want your employees to be sneaky and feel like they belong and have that sense of loyalty and how do you build that if you're not physically together. You know, There's a, there's a strong belief that sort of the magic happens in hallways and in those little, you know, sometimes in those, those informal communications is where brilliant ideas pop up and you want to foster that and not have everybody working by themselves, you know separately. So I think companies are looking at creative ways to do that obviously Zoom is one, you know, you still have, you still have that put a name with a face and then have a little bit of interaction that people really want. And you know the people were talking about and doing things outside and, you know, trying to have larger rooms with better ventilation to try to find ways to get people together. I think the challenges are really going to be on things that are hard to do separately things like disciplinary actions right, you know, how do you terminate somebody over zoom, that's That's rough. You know, a new employee that needs to be trained, you know, in many cases that training needs to happen, you know where they're close to another employee to shadow them or to watch what they're doing and that's hard to do overs in so there's lots of challenges here. 

Ross Gianfortune
We have certainly talked to, you know managers throughout this whole thing and communications experts and that is we have Clint Paget who wrote a whole book on on this stuff and that was part of his main thesis was that the magic sort of happens a lot of collaboration. Collaboration wise. At the watercooler in the hallway you know on the way to lunch that kind of thing. So well end up on this, and then no, nobody likes putting on the fortune tellers hat but, um, you know, is do you think there is a timeline for sort of offices to get back to normal.

David Barron
I think everybody wants to get back together. And I think the momentum seems to be heading in that direction. It's just so hard to predict, you know, I mean if you were to ask me a year ago if we, if we'd still be out of the office a year you know a year later after shutdowns and I would have thought that was crazy talk and now you know we are where we are. I mean you see Europe with a new spike, which is very concerning. You know luckily we don't seem to be having that things seem to be going in the right direction. I think it's gonna be hard to turn around that momentum, I think, I think businesses are reopening and people are getting back into offices, and there's a yearning to do that. But I do think we'll have masks and social distancing for a while until because employers, again we're gonna have OSHA potentially requiring it states and localities might be requiring it so until those regulatory obligations go away I don't think employers will feel comfortable taking away those things in the workplace, even if people are vaccinated

Ross Gianfortune 
for sure it's a there's there's so much, it's still unknown. But until then, thanks so much for being on the show with us. 

David Barron
Thank you.

Ross Gianfortune
Thanks for listening to GovExec Daily. Our show was produced by Adam Butler and hosted by me, Ross Gianfortune. We want to thank Cozen O’Connor’s David Barron for joining the program. Our music is the song “Signals” by Catfish Dancing. Be sure to rate, review and subscribe on Apple Podcasts or Spotify or wherever you get your podcasts. You can email us any feedback at podcast @ govexec.com or hit us on Twitter @ Govexec.  

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