In this article, member firms of Ius Laboris, provide guidance on the main employment issues around both operating in the current crisis and reopening the workplace in Italy, Sweden and the United States
Whilst in lockdown, in-house lawyers have to consider two main issues: business continuity (i.e. clients, customers and partners) and employee issues. From a customer/partner perspective, any risks need to be assessed carefully, including ensuring company solvency through costs assessment, cost reduction and management of commercial contracts (particularly with force majeure clauses) and issues around supply of information, tools and raw materials. Government financial aid must also be monitored particularly carefully, notably tax issues and governmental loans. Interaction with other countries should be considered carefully, both from a business and a movement of goods and logistics point of view.
From the employee side, in close coordination with HR, in-house lawyers must keep on top of all the health and safety measures to be enforced and any changes to official positions or advice. In addition, they should clearly explain the ongoing situation to employees, including measures to be taken to ensure the company’s future, potential measures to reduce the impact of financial issues (such as working hours reductions, suspension of work, holidays and any compulsory leave to be taken).
Thought should be given to having a Crisis Emergency Team in place including privacy experts, HR, in-house counsel and asset protections experts to monitor different measures to be taken.
What to do to prepare for when the workforce comes out of lockdown?
In-house lawyers (in conjunction with HR) have to clarify the post emergency plan as soon as possible, including various different measures to be taken at the ‘come out’ date. It will be necessary to keep in mind that the emergency will last for months and activities must be monitored for the whole period. In particular, risk areas need to be assessed – including data protection (particularly around positive Covid-19 tests), stress issues, potential layoff or working time reductions and increase illness rates – to create a plan to manage them. It is important to prepare people to work from remote for an extended time. This includes evaluating people working remotely and organising teams accordingly, supplying devices and VPNs, etc. For non-remote work, consideration should be given to the layout of the workplace and how to ensure it complies with social distancing and the use of protective equipment.
In addition, HR professionals will need to prepare for a potential second wave of lockdown if there is a resurgence of coronavirus before a vaccine is ready.
In Sweden, the virus is affecting the business in different sectors in various ways and to varying extents. Although there is currently no lockdown, the recommendation is for employees to work from home to the extent possible and limit social contacts both professionally and privately as much as possible. Personal responsibility (‘common sense’) is especially emphasised.
With regards to lay-offs etc., there is a possibility to apply for short time allowance from the state, where employees will have reduced salary and working time and the company receives a state contribution for salary costs. These measures must be assessed in conjunction with considerations around any terminations that are necessary due to redundancy.
Employers in Sweden still need to plan for the usual vacation period. Employees are entitled to, and should take, at least four weeks of vacation from 1 June-31 August. The aim is for employer and employees to agree on how to allocate vacation but if an agreement cannot be reached, the decision is the employer’s.
When it comes to cyber-security and data protection, this must be addressed, especially when employees are working from home. If HR departments do not have any policy regarding data security, it could be a good idea to prepare one.
When in lockdown, the most important thing that in house counsel should be doing is continuing to work with operations to ensure that all employment actions are compliant; for example, as the stay-at-home orders continue to be implemented and extended, decisions regarding temporary and permanent layoffs, which could implicate the federal or state WARN acts, need to be monitored.
How to prepare for when the workforce comes out of lockdown?
With most states projected to hit the outbreak peak sometime this month, companies are tentatively looking to the future and to what the new norms will be in the workplace. In-house counsel should be working with the safety teams to determine how best to reassure employees and customers, including determining whether masks will continue to be permitted or required, whether temperature checks will continue, and what the cleaning and sterilization protocol will be going forward.
In response to the rapidly changing employment landscape globally, Ius Laboris has launched a Coronavirus Resource Hub to support employers as they deal with the challenges confronting their workforces and businesses as a result of the pandemic.
Contributing authors to this article include Lea Rossi, Partner, at Italian law firm, Toffoletto De Luca Tamajo, Sofia Lysen, Associate at Swedish law firm, Elmzell and Amy Turci, partner at US law firm, Ford Harrison.