Jon Hyman is US-based employment and labour attorney. He chairs the Employment and Labor Practice Group and co-chairs the Craft Beer Practice Group at Wickens Herzer Panza in Avon, Ohio. He is also an author, speaker, and blogger. Hyman has extensive experience in specialized employment and labour law issues, such as wage and hour compliance, social media, cybersecurity, and other workplace technology concerns, workplace safety, affirmative action compliance, and union avoidance and labour relations.
People Matters caught up with him for an exclusive interview. Edited excerpts.
How has the pandemic impacted the employment laws landscape in the US?
In the United States, the focus is largely on the following issues:
The need for meaningful paid family and medical leave. The US remains the only industrialized nation in the world that does not require and provide any kind of paid sick leave to its employees. Some do have access. As per an executive order signed by former president Barack Obama, some federal contractors must offer paid sick leave to their employees. Later this year, federal coverage will expand to federal government employees. And some states and municipalities require the same. Yet, most US employees have zero access to any amount of paid sick leave. The pandemic highlighted this omission. No one should have to choose between paying their mortgage, buying food, filling a prescription, and staying home from work because of an illness.
The impact of work from home on issues such as how we track time so that employees who are working from home are accurately (and lawfully compensated). Second is privacy: how we legally monitor employees’ activities when they are not at home and off our networks.
Safety. The large regulatory agency of the United States OSHA was very slow to react to the pandemic. Thus, employers were left with a patchwork of state orders and non-binding agency guidelines from OSHA, the CDC, and others.
What are the top issues facing organisations around harassment and discrimination in the virtual and hybrid workplace?
1. How do you decide who works from home and when? Is there disparity among races, genders, ages, and other protected classes?
2. Are you considering remote work as a disability reasonable accommodation for those employees who are at high risk for serious illness from a Covid exposure?
3. Harassment (illegal) and bullying (legal, but still wrong and should be prohibited by employers) are issues that remote work can potentially exacerbate. The informality of remote work and the ability to communicate without being face-to-face with our co-workers potentially make inappropriate conduct easier to commit. Some feel more comfortable and at ease typing something from behind their screen that they would never say to someone's face.
The pandemic has affected employees' mental health to a great extent and employers are playing their role in supporting them. Are there legal obligations on employers’ part to take care of employees’ mental health?
Legal obligation? No. Moral obligation? Here are some suggestions to help employees manage mental health issues.
1. Check the benefits available to your employees. Do you have an Employee Assistance Plan? Are its mental health and counselling services up to date? Are your health insurance plan’s mental health benefits easy to access and affordable?
2. Revisit paid-time-off policies and consider providing employees the time they need to take care of themselves and their families. And understand that everyone’s situation at home is different. Consider holding town halls that focus on mental health awareness. Just because many are working remotely does not mean that employees have to be separated. You can use technology to foster togetherness and a sense of community. Virtual get-togethers, mindfulness breaks, and online team-building events all help ease the sense of isolation.
3. Small gestures of kindness can go a long way. An extra paid day off, a gift certificate for takeout meals or grocery deliveries, or a surprise delivery of a mid-day snack can help employees feel appreciated and connected instead of overwhelmed and stressed.
Can you give us a glimpse of remote working legislation in the US? What do you think should change amid the rise in remote work?
As far as I'm aware, there is no remote-work specific legislation in the US. It is an employer-by-employer decision on what each thinks the proper policy is for its business needs and workforce composition.
What are some of the top factors to keep in mind for employers to navigate towards a return to the workplace?
Reasonable accommodations. Will you continue to permit disabled employees who request continued work from home as accommodation for their disabilities?
Who wants to return to a physical workplace and who doesn't? There is a definite recruiting and retention aspect to a return to work versus continuing remote work. Employers need to determine how many potential employees, and which employees, they will lose by shifting back to in-person work, if those are employees it can afford to lose, and how they will be replaced.
What safety and infection-prevention lessons have you learned from the pandemic, and how will they be implemented upon a return to the office? Will masks be required for in-person meetings or other gatherings? Are vaccines required?
The gender pay gap is still quite wide in several countries. Is there any significant breakthrough on this anywhere?
Pay transparency laws that are in place in 17 US states certainly help. Otherwise, the Equal Pay Act has been the law of the land since 1963. The Equal Employment Opportunity Commission is actively investigating and prosecuting claims.