Employment Law and COVID (EP.49)
Recorded
April 27, 2021
Last Updated
November 23, 2021
This conversation was recorded as part of Work Shouldn't Suck's Ethical Re-Opening Summit that took place on April 27, 2021.
This past year saw the environmental impacts of the workplace shift dramatically. For many, travel for work was completely erased, both commuting and related business travel. Conferences that traditionally attracted hundreds or thousands of in-person attendees shifted to online offerings. As we consider how to reopen our workplaces, how can we do that in intentional ways that center our impact on planet and people?
Guest: Andrea Milano
Host: Tim Cynova
Guests
ANDREA MILANO focuses her practice on all aspects of employment litigation, counseling and traditional labor matters. She manages a diverse caseload of class, collective and representative actions, single plaintiff litigation, and traditional labor matters. She has significant experience drafting and arguing substantive motions, conducting discovery, and preparing for trial. Andrea regularly provides direct advice and counsel on a broad spectrum of labor and employment law matters, including conducting positive employee relations and sexual harassment avoidance trainings; investigating payroll and wage and hour audits; developing, drafting and revising handbooks and employment policies; and managing performance issues, terminations and reductions in force. While she has handled litigation and employment matters across many industries, her focus has been on technology, hospitality and health care.
Transcript
Andrea Milano:
I think you do have to think through it, and you have to be willing to have the conversation and meet employees where they are. An older employee, an employee with asthma, an employee who has another condition might be much more risk averse in terms of getting back on the subway or a bus than lower risk employee in terms of their basic demographic standing. I think the other thing you need to consider is income range and socioeconomic status, because this disease is not impacting everyone the same.
Andrea Milano:
And so if you have employees, like if the people at the top who are making the decisions park in the parking garage or can afford to take Uber or have drivers, that's very different than the people who have to take two buses or a subway to get to work. And those are realities that are hard to confront, but that you have to think through.
Tim Cynova:
Hi, I’m Tim Cynova and welcome to Work Shouldn't Suck, a podcast about, well, that.
Earlier this year, podcasting's favorite co-host Lauren Ruffin and I produced Work Shouldn't Suck's Ethical Re-Opening Summit. The event took place online on Tuesday, April 27, and featured eight sessions, 25 amazing speakers, and covered a whole host of topics related to the ethical re-opening of workplaces amid the COVID-19 pandemic.
We raced to produce the Summit from start to finish in just three weeks as we felt the urgency and stress mounting as workplaces were in the midst of re-opening decisions. Several months on, we still feel the content is as necessary as ever, so we decided to release each of the sessions in podcast form.
In each of the eight sessions, you'll hear the conversations just as the Summit attendees did. As a reminder, in late April 2021, COVID vaccine distribution was just gaining speed and we had yet to begin hearing about the Delta variant. From that vantage point in time, it very much looked like by Fall 2021 things might be settling back into somewhat of a quote unquote normal routine. As I record this preamble in Fall 2021, that's not the case. We're now talking about break-through infections, booster shots, schools opening and closing again, hospital ICUs are packed in states across the U.S., and still how to safety gathering in indoors as the temperature again begins to drop with the change in seasons.
In this session: Employment Law & COVID, I have the pleasure of chatting with Andrea Milano about the myriad ways employment law and its application have been changing and evolving amid the global pandemic. Note again, this conversation took place in April 2021. While there's a lot that still holds, this was before wide-reaching vaccine mandates. So, let's jump over to the conversation…
Tim Cynova:
Hi, everyone. And welcome to our session, employment law and COVID. I have been anxiously awaiting this session ever since our guest said yes to it. I'm Tim Cynova, I'm a white man with short to medium messy brown hair. I'm wearing blue rectangular glasses. I have like a salt and pepper stubble. I'm wearing a black zip-up sweater with a blue dress shirt and blue tie. And I'm sitting in front of a wood paneled wall.
Tim Cynova:
A reminder here, about the chat and the Q&A section, I'll be paying attention to that. And let's just dive in. I'm so excited for this session. I'm so excited to be joined by the awesome Andrea Milano, who is a special counsel of employment law at Pillsbury Law. Andrea, welcome to the summit.
Andrea Milano:
Thanks so much, Tim. I'm really excited to be here.
Tim Cynova:
Let's begin with, how are you doing and how do you typically introduce yourself?
Andrea Milano:
Sure. To start my name is Andrea Milano. I am a white female in her 30s. I have long dark Brown hair and dark rimmed glasses. I'm wearing a brown suede jacket and I'm sitting in my basement, my home office space. You can see behind me, I have a wall of gold maps, which is all the states I've lived in my whole life. That's where I am. Professionally, I introduce myself, so I'm special counsel at Pillsbury Winthrop Shaw Pittman. I am so happy to be part of their employment law team.
Andrea Milano:
I've been practicing employment law since 2011, so this is my 10 year anniversary of being in this field. I've really tried to maintain a diverse practice of employment law, counseling, litigation. I also do labor law, which includes union work. And this past year has been very focused on counseling because in the world of COVID, that took over. And so just always learning new things and growing and meeting our clients' needs however we can.
Tim Cynova:
Andrea, I haven't read your bio and in a while. And so I went to the website as I was prepping for our session, and your areas of practice include travel, leisure and hospitality, artificial intelligence, healthcare, technology, media and telecom, as well as employment law. And so these are all areas that don't seem to have been impacted at all during the past year, at least jokingly. What has this past year been like for you?
Andrea Milano:
I will say, one of my very favorite things about employment law that has always been the case is that everyone has employees, which means I have worked cross sector and cross industry, really my whole career. And I love that anytime I'm talking to someone, whether they're a nurse or a mechanic, or... I have had some wild clients, the cheese makers, all these different things. Everybody has employees, everybody can talk about being an employee or having employees.
Andrea Milano:
As diverse a set of issues as COVID has caused, I think the employment sector is something that we've all been able to feel and think about and have impact us. Yeah, we've been getting calls from clients throughout the firm, everybody has questions about what to do with their employees. And really one of the silver linings of this year has been, everyone is trying to do right by their employees. And so it's really, really... I've spent the past year focused so much on what do we do? How do we help? What can we do?
Andrea Milano:
It's been a year that feels really out of control. There has been some positive, tangible impacts that we've been able to have, and I'm proud of that, and grateful for that.
Tim Cynova:
I'd be curious if... my sense is that most of the organizations and people who are here are smaller, they might not have HR staffs. We saw it in the chat, Jessica said they don't have an HR person. My sense is that the group we're speaking with too, this might be a lot of DIY. You're an executive director or a deputy director, you don't have a formal background in HR, you don't have an HR person. It is felt in this past year, I've been fortunate to attend a lot of the webinars that Pillsbury's produced, also you and your colleagues in employment law group there have been publishing some great alerts.
Tim Cynova:
It feels like there was a day where employment law was changing every single day as it related to COVID. And as someone who enjoys HR, has a background in it, loves serving employment law, that was of interest to me. But first of all, how are you processing everything that's coming out where it feels like the ink on the law wasn't dry by the time people were having to figure out what was happening?
Tim Cynova:
And how do you counsel smaller organizations where they might not have anyone... the person who's doing HR is also doing marketing and also doing finance and operations. What's your typical response?
Andrea Milano:
I think that my initial responses acknowledged the hard. I think we all need to get better at doing that for ourselves, but it's been a challenge. And if you're doing this and even for HR and employment law professionals, this has been hard and challenging, and there aren't always clear answers, and it is a moving target. And it does feel like whack-a-mole a lot of times. And so, this is hard and it's something that we need to be really thoughtful about and pay attention to.
Andrea Milano:
So if you're not an HR professional and this HR was a much smaller part of your work-life before COVID happened, I think acknowledging that this is hard, and this is changing, and it is a challenge is important. And so there are a lot of really great resources out. Pillsbury, I have to plug my own firm. Pillsbury has been working really hard to stay on top of developments.
Andrea Milano:
I guess the other thing to note is that it's so state and city-specific. There's really different standards depending on where you live and where you have employees. Even within an area like I'm based out of D.C., between Virginia, D.C., and Maryland, the standards are different. So if you have an office in Virginia, you have to comply with certain very stringent guidelines that don't apply to other states. So it does feel like a moving target.
Andrea Milano:
I think it's just staying aware, asking for help when you need help, finding the resources that can help you, and being agile. I think being able to respond and say, "Okay, that's what we were doing and now we're going to pivot because we have to."
Tim Cynova:
Great. Let's pivot right into some real life questions here, and we'll let some more gather in the chat. We did a survey leading up to this, and there's been several that I've seen that have been asking people, "Come fall, how many days a week would you prefer to work in the office? How many days a week do you think you'll be expected to work in the office?" And the numbers are all over the place. But not that many people would prefer to be in the office more than three days a week or so, is roughly what's coming out of it.
Tim Cynova:
One of the questions I'm starting to hear with increased frequency and urgency, and I'm sure you are as well is, "What if my employer says, 'If I don't come back into the office five days a week, or as many days a week as they want me to be there. And for reasons I might fear for my safety, and my health, and those of my loved ones that I'll lose my job?'" There's two sides of this from the employee and employer side. I'm sure you're hearing this, what do you make of it? What's your counsel?
Andrea Milano:
It's a hard question. I think there's a lot of things that go into it and I think employees and employers are both really grappling with this decision. And being an employee and also someone who counsels employers, I feel both of this strongly. Depending on any specific job or return to work requirement, one, I think a lot of it is going to be tied to schools, because I don't think it's reasonable to expect a full workforce to be back five days a week if schools are not back five days a week.
Andrea Milano:
Because the realities of childcare are such that if your kids aren't back in school, what are you going to do? So I think for many reasons, getting schools up and running five days a week on a consistent, safe basis is a top priority. And my mom is a public school teacher, so I feel very strongly about that for many reasons. I think it will also depend a lot on what city and state mandates are an and how things progress.
Andrea Milano:
I expect that private companies will continue masking requirements, whether or not those are required by cities and states. I've seen that already as some states have rolled back those requirements. And I think employees should feel empowered to ask for details about what's being done to keep them safe, and employers should be welcoming those questions. Quite frankly, I'm counseling employers to be proactive, like, "Your employees should feel safe here."
Andrea Milano:
Returning to work should be a positive thing, nobody should be kept in the dark. And everyone should know what the protocols are, what we're doing, what to do if something goes wrong. See something, say something, and I think it needs to be a collaborative process.
Tim Cynova:
One of the very early things, it might've been in the very first session, your colleague Julia Judish started talking about the OSHA general duty clause that requires workplaces to provide a workplace-free of hazard, and that now COVID was a hazard. And it was this moment where I thought, I studied OSHA's general duty clause is like dangerous chemicals and sharp objects and stuff like that. But now this was like applying to everyone, workplaces that generally didn't have to think about it.
Tim Cynova:
So I got a question about what's OSHA general duty clause? And is this related to what I've been hearing about why Congress was or is trying to limit employer liability, if employees get sick and die from COVID. Can you break down the OSHA general duty clause and how workplaces should be approaching this?
Andrea Milano:
Sure. In general, a general duty clause is basically that you can't be negligent. You have to maintain your workplace in a way that a reasonable employer would to protect against things. And so nobody's expected to protect against everything. If there's some natural disaster and somebody gets hurt at work, OSHA isn't going to say, "Oh, you're on the hook for that." But if something happens and you don't have shatter-proof windows and you should have had shatter-proof windows because that's the standard of construction, then you would be on the hook for that.
Andrea Milano:
So the general duty clause is really tied to what's reasonable and what can be done. COVID is tricky, it's just different. And I think it is scary for employers to hear that they could be on the hook for it, and I think it comes from a lot of different ways. Are you requiring your customers and your employees to wear masks? Are you requiring social distancing? Do you have a lot of physical workplaces have tape on the floors, showing people how they stay apart.
Andrea Milano:
What do you do if someone comes in and refuses to wear a mask? How do you handle those situations? Is the boss wearing a mask. Those are the kinds of things where I think an employer could get in trouble if they're not meeting that reasonable person standard. And I think that that will be judged by what the mandates are. In D.C., the mandate is currently that if you're inside, you have to be wearing a mask, you have to be six feet apart. It doesn't matter if you've been vaccinated or not. Those are still the rules.
Andrea Milano:
And so if you are an employer and you are not requiring people to wear masks, if you're not social distancing, you're not meeting those basic thresholds, I think there could be liability there. That's the easiest way to think about it, but I think there's other concerns as well. Depending on your workforce, if you have a significant population that requires public transportation, is requiring employees to be in-person if public transportation hasn't made it to where it's a safe space.
Andrea Milano:
And then if somebody gets sick on public transportation, picks it up, brings it in, or even just gets sick themselves. I think that's more attenuated, but I do think we have to think through some of those other risk factors as well.
Tim Cynova:
How would you think through those risk factors? Because from New York, there's the subway, or buses, or you're walking. And so there's a lot of distance a lot of times between where you live and where you work. And so how as an employer, what would you be thinking about as it comes to that?
Andrea Milano:
There's so many considerations that go into it. I have a good friend who lives and works in Midtown and she's been walking into the office. And she feels in some ways an obligation to get New York city back up and running, like how many lunch places cater to in-person employees who aren't there? On the other hand, my sister lives in New York city and I don't want her to take a Metro really ever again.
Andrea Milano:
I think you do have to think through it, and you have to be willing to have the conversation and meet employees where they are. An older employee, an employee with asthma, an employee who has another condition might be much more risk averse in terms of getting back on the subway or a bus than lower risk employee in terms of their basic demographic standing. I think the other thing you need to consider is income range and socioeconomic status, because this disease is not impacting everyone the same.
Andrea Milano:
And so if you have employees, like if the people at the top who are making the decisions park in the parking garage or can afford to take Uber or have drivers, that's very different than the people who have to take two buses or a subway to get to work. And those are realities that are hard to confront, but that you have to think through.
Tim Cynova:
Great. I'm going to pivot to some of these questions that are coming in before I lose them. Emily asks, "What does an employer do if an employee who has been vaccinated doesn't see the rationale for wearing a mask?"
Andrea Milano:
Until guidance changes, CDC and OSHA are both still saying that despite vaccination status, mask mandates are to remain as they are. If that changes, we can reassess, but for the time being, those are the rules, those are the rules as set forth likely by your mayor or whoever your governing authority is. There should be strong policies in your workplace that require masking. And someone who is not willing to comply with the law and company policy should be counseled and terminated if they won't comply, because they are still potentially putting other employees at risk.
Tim Cynova:
Great. Thank you now. Let just... Thank you, not great.
Andrea Milano:
Not great, but employers should feel enabled and empowered to do that and to make people follow the rules.
Tim Cynova:
The next question is about, "Our office suite is on the 18th floor of an office tower. One of our concerns is air filtration. What level of meeting OSHA requirement do we need to consider for risk?"
Andrea Milano:
Sure. A lot of the questions about shared office space would go to building management. And so someone within the company should be working with the building management company, elevators, the shared spaces, dealing with things in that regard. I think absolutely if it's a concern, have an air filtration company come out and do an assessment. I know that there are HVAC systems that can I think... I don't know what chemical it is, but there is a chemical that you can have in your HVAC system that really is killing COVID germs and it's really decreasing risk.
Andrea Milano:
If that's something that you have the means to do, absolutely do it. I think, the more steps we put in place to prevent things, the better. Absolutely.
Tim Cynova:
We have a question about regulations with vaccine reporting and testing, and it actually relates a bit to one of the questions that I received before. Beforehand, I was talking with someone who runs a dance company and said, "I know where our dancers are. I know that they've been quarantined or vaccinated. When we go on tour, we're in tight spaces in the backstage of venues. I don't know about those spaces and about the employees and contractors who might work there. What do I do?"
Tim Cynova:
And then maybe these are related, maybe they're not, quickly reading as they're coming. The question about, [inaudible 00:19:01] to learn more about regulations regarding vaccine reporting or testing for events and gatherings for staff intending. So sort of related here, I'm sourcing you this bucket, what do you make of it? What's your advice?
Andrea Milano:
Great. An employer can ask about vaccination status of its employees, that's fair game. That said, an employer has an obligation to protect the confidentiality of that information. That does fall within HIPAA and other medical employee privacy rights. An employer can have a mandatory... vaccines are required to be on site so long as they can justify that anyone who is not vaccinated would be posing a direct threat to the other employees.
Andrea Milano:
But if someone says that they are not willing to get vaccinated or can't get vaccinated, and that's related to a disability, you have to be willing to engage in the interactive process with that person the same as you would if they had any other disability. And this is in part because the vaccine is still under emergency use authorization, and also because... It's hard because there's so much going around with the vaccine, but there are certain categories of individuals who may be higher risk for a complication from a vaccine.
Andrea Milano:
And so if someone were not able to get it because their doctor had advised that they shouldn't based on another underlying condition, to the extent that that person could continue to work remotely or other accommodations could be made, you have to engage in that same interactive process. I've also been getting questions related to this, can employees share their vaccination status? Can you have an in-person meeting and say, "Don't worry, it's okay. Everyone here is vaccinated."
Andrea Milano:
No, don't do that. Everyone, quite frankly, I think employees will talk about it. I've talked about it with folks, there were folks sharing, "Oh, Hey, I found a spot that has appointments available, you should go. I think employees will talk among themselves. That's very different than the employer speaking on behalf of the employees. And to the extent that you have employees in your workforce who have a legitimate disability and reason for not getting it, you don't want to start a witch-hunt or in any way suggest that those employees should be outed or made to feel in any particular way because they didn't get the vaccine.
Andrea Milano:
So generally, you can require it. In the context of the dance company, I think it's absolutely fair to ask the company that you're visiting, what are their policies, what are they doing? And see what that is. I would stay away from any questions to the extent of, is XYZ person vaccinated? But they may offer it, they may say, "We have a mandatory onsite vaccination policy and that effectively communicates to you that someone has shown up, they have been vaccinated.
Tim Cynova:
This is one of those areas of HR verse like, before COVID is like, "Don't talk about anyone's medical condition, anyone's medical history." Now it's like, "We could take temperatures or ask about symptoms, but can you ask about the person they might live with, about their symptoms and where they've traveled?" And it feels really complicated in the potentially really challenging area to navigate this, especially as things are changing. What's your advice on this?
Andrea Milano:
It is complicated and I think it is changing. And I think the further we get from crisis point, the more we'll see things roll back. I have a friend who is a small business owner and she said, "I'm just going to have a policy forever that nobody with a fever can ever come in." And I said, "Okay, except that people with a lot of noncommunicable diseases can have fevers, and so can cancer patients who are undergoing chemo, and plenty of other people who you wouldn't want to exclude from your store."
Andrea Milano:
But right now, it's absolutely fair game to say, "If you have a fever, you are not allowed in the store because it's a public health crisis." So the things that we're seeing are being done because we're in a crisis. And I think that we should be careful about making any snap judgements as to what we'll do on a going forward basis. Because I do think that employee privacy has a place in work, but there has to be a balance. And the public health concerns here are outweighing the balance to an extent of what we normally see.
Tim Cynova:
Great. All right. I can see, I'm trying to cue these questions. I've been trying to order these questions in my mind as I see them here because there's some other ones. Let's just go with the last one that came in and then I'll swing back up. "Are there any differences in what can be required of staff working directly with children?"
Andrea Milano:
I have not seen that yet, but I can see where that would come. I think once the vaccines are no longer under emergency use authorization, once they have been formally approved by the FDA, I think we will see more mandatory vaccine requirements with school teachers, with daycare workers, things to that effect. And so then I think that the exceptions for individuals with disabilities will be much more few and far between, and there won't be room for exceptions for people who just don't want to get the vaccine, as opposed to who have a disabling condition that precludes them from getting it. But I haven't seen anything else dealing with children yet.
Tim Cynova:
Thanks. Also, you're doing awesome. You're just saying question after question, so kudos. I hope you're staying hydrated, if you have a PowerBar or something like that.
Andrea Milano:
I got my water, I'm doing well.
Tim Cynova:
All right, cool. Let's talk about travel a bit-
Andrea Milano:
Sure.
Tim Cynova:
... because actually the other session that is going on right now it relates to intentionality around environmental impacts. And right now, for many who used to travel a lot for work aren't doing it right now, haven't done it for a year. And so there's a question coming in that says, "If the job requires travel when travel resume, how to accommodate for employees that no longer want or are able to travel for work anymore?" What do you think of that one?
Andrea Milano:
I think that's a good question. I was someone who traveled a lot for my job before COVID and it's been a pro and a con to not be traveling. The first couple Zoom depositions were a challenge, but it was also really nice to not fly across country for a two-hour hearing, and I think a lot of people are feeling the same way. So I think going forward, we will be forced to reconcile what travel is actually necessary. I think COVID in general has forced us to think about what is actually necessary, how can we do things otherwise?
Andrea Milano:
I think certainly some things will be in-person, and to the extent that... I think an employer should feel empowered to have travel obligations. I think some things do have to be done in-person. But to the extent that you're trying to accommodate someone who has a disability, who has small children, who has other obligations, I think people will think harder about it because this past year has proven that things can be done in a lot of different ways and still be very effective.
Andrea Milano:
And so to the extent, with reasonable accommodation requests, I think it will be harder to prove if you're going to deny someone a job or promotion, something like that that something really is required. And we've already started to see that even in returning people to work. If somebody can continue doing their job remotely and has been doing that for the past year, let's wait it out, let's be cautious here. If they don't want to return yet, let's let them continue to work from home.
Tim Cynova:
Great. We have a couple of questions about communal spaces or if people have like plus one on communal spaces. It says, "What are we seeing as best practices around maintaining communal staff spaces, where even when not gathering like brief staff use of a break room, amenities like fridges, sinks, microwaves?" Can you speak to what we should be thinking about there?
Andrea Milano:
Sure. There are maximum occupancy reductions that have been in place, so I would start by checking any specific ordinances that are governing in-person use of physical spaces, and then posting signs to that effect. I think signs on the floor are very effective, showing where people should stand. I've seen companies moving to having single service food available so that there's not reaching into a communal space.
Andrea Milano:
I've heard about companies doing almost like delivery to offices so that employees don't have to go to the kitchen, which feels lonely, but is mitigating the risk. My sister works for a company that I'm often jealous of. They used to do bagel Friday, and now everyone gets a DoorDash gift card on Fridays saying, "Go buy your own bagel because we don't have those anymore." So there's a lot of different ways to handle it.
Andrea Milano:
But I do think making sure that you are reducing capacity, extra cleaning, to the extent that you can provide extra cleaning, to the extent that you can add things like sanitizing wipes, hand sanitizer stations, spacing any tables out so that employees just have to sit six feet apart, staggering break time, so that the use of the break room and communal spaces is... Instead of everyone going to lunch at the same time, people are going in a staggered group. So anything you can do like that to reduce overall capacity.
Tim Cynova:
We have a question, "I heard of incentives for vaccines like gift cards, but wonder if this is problematic. Can you speak to this?"
Andrea Milano:
It's a little problematic to the extent that you would have someone who had a legitimate disability or disabling reason for not getting the vaccine? I think it could also cause someone to be in a position to disclose something before they were ready to. Particularly, I think if someone were pregnant early on and were waiting to get the vaccine, something to that effect, they may not want to tell HR that they were pregnant yet. My other issue with giving gift cards to employees is that that is taxable income so I could do a whole separate session on that.
Andrea Milano:
But I've litigated one too many cases where no good deed goes unpunished in that sense, so I would caution that. But I think you could have... if you wanted to incentivize it, you could maybe do something that if we get to 80% vaccination, we'll have a pizza party for everyone. And that way nobody is singled out and pizza is not taxable, or whatever it is, but some sort of more communal incentive.
Tim Cynova:
Great. Let's pivot to remote work arrangements. I've got a couple of questions already about this and see one in the chat. One of the questions is, "With so many workplaces shifting to remote work arrangements last spring, I've heard things like, should my employer be providing me an allowance for my home office internet if they require me to be on Zoom calls all day?" How do you advise approaching this both from an employee perspective and employers perspective?
Andrea Milano:
From an employee perspective, if you are incurring costs, like legitimately incurring costs that can not be avoided, you should be telling your employer. That is not carte blanche to go refurnish your home office space, but I think we've seen it with IT folks who are working out of a call center. They have a requirement that they have very, very high bandwidth internet so that they can remote on and help assess IT issues, and you wouldn't have that at home. So if their employer is requiring them to up their Comcast bill, that is something that should be accounted for.
Andrea Milano:
I think another concern is if you're working from home with multiple people, and so you have multiple people on your WiFi, you as a family unit or household unit may decide to increase. I don't know that that would specifically go to your employer, but I do think that employers in many cases are affirmatively providing these allowances to employees because they realize that there are more costs associated with it. You are using more bandwidth, we are on Zoom all the time.
Andrea Milano:
So I think if you're an employer, you should absolutely be considering it. And as an employee, you should feel empowered to ask questions about it and to be honest. I will say, a lot of the employers who I've been working with on this, their question is, what's reasonable? And so I think to the extent that this can be a collaborative process, that's helpful for everyone because it seems to me that employers do want to do right on this issue. And so to the extent that they know what their employees are actually incurring, what their employees need, they've been, in my experience very willing to provide it.
Andrea Milano:
I've also seen a lot of employers doing office supply pickup and drop off days. And so on the first Wednesday or every other Wednesday, you can go and get any supplies you may need, you can drop off anything that needs to be shredded, things to that effect. And I think that's helpful as well.
Tim Cynova:
Last summer I heard a question about increased electric bills. When I used to go to the office, I didn't have to run my air conditioner throughout the summer. And so is that something that the employer should be paying for?
Andrea Milano:
I think that gets a little iffier. I'm sure we'll see plaintiff's counsel bringing those cases, but I think that gets a little iffier when it gets into anything such as a personal preference. Growing up with my mom, we never put the air conditioner on, so we never would have had that expense, but I can certainly see the argument there for it. And I think we may see some claims there. Again, if an employee is in a really specific situation where there's a hardship, I think if an employee, for example, didn't have internet access at home, something like that, that they should bring up.
Andrea Milano:
But I don't think utility bills will generally fall within an employer's scope of obligation. Especially once there's an option to safely return to work, those claims will go away.
Tim Cynova:
One of the topics that we've talked about a lot, very spirited conversations, and now that I'm debating your expertise in employment law, I just like having it, is the unlimited paid vacation day policy.
Andrea Milano:
We have lots of that... I was like, "What are you going to bring up?"
Tim Cynova:
Your colleague, Julia, I think doesn't want to have that conversation anymore. I guess, meaning like cap it, you can do more than 10 days, but to have an unlimited paid vacation day policy opens yourself up to a lot of risk and that if someone doesn't get it or someone else gets it, then that can be challenging. Your advice and Julia's advice is, you can have it at like 45 days. You can cap it at 60 days, but have some limit here.
Tim Cynova:
But it seems like, I'm going to use this as a pivot to on both is, things, I got unlimited paid vacation days are starting to gain speed as people are talking about, take the time that you need. We're living in a pandemic, we're not operating 100%. That's one thing. And then also the four-day workweek seems to have picked up velocity in recent weeks or months as organizations say, "Okay, so people don't want to be in five days a week. If we are working at 80%, let's just say we're working at 80% and close on one day."
Tim Cynova:
With both element of paid vacation days, I'm not an unemployment attorney, you should not take my legal advice, but Andrea's. If you're thinking about a four-day work week or a flex work week, what should you be thinking about as you approach this as an organization?
Andrea Milano:
That's a good question and I think we're thinking about that as well in going back. My group actually was big into working from home even before COVID, so we've been talking about how do we do setting a day every week that all the employment lawyers will go in, because if I go in and Julia's not there, and Rebecca's not there, then I may as well as stayed home because what's the benefit of being in-person? So setting the in-person days so that everyone can make the most use of being in-person, and then doing things remotely on other times.
Andrea Milano:
I think hoteling of office space will also come up as we move to reduced capacity. If different groups are using the office on different days, you might not need as much space as you currently have. Hoteling can lead to some concerns. I know some people really like it, I don't love it. I like having my ergonomic setup and it's my office, I have my pictures. But I think that's something that you can think about as long as you're meeting employees needs moving to hoteling.
Andrea Milano:
On the unlimited vacation point, I'll say one of the cons of unlimited vacation is that employees often don't take it. When you're empowered to take as much as you want, you often take none. And I think that's been something people are really feeling during COVID, everyone was so worried about what was coming next, is their job security that people not taking any time off. I've seen some pushes recently really forcing employees to take their time off and take the time they need because we're hitting burnout.
Andrea Milano:
I know there's at least one law firm that is giving billable credit to people for a week of vacation, which is unheard of in the big law world. It speaks to how bad it has to be that they're there. I think one of the ways around protecting a company if you want to do the unlimited time off and you want to be more flexible, is to just write in language that says, "Any leaves have more than five days needs to be approved ahead of time." Or, "Any time off taken for any of these reasons," and then you list jury duty, family medical leave act for disability because you're sick.
Andrea Milano:
Those don't fall under this policy. I'm trying to create the carve-outs, because one of the concerns that we have is that an employee has a medical condition, thinks they can manage it on their own, starts taking time off. By the time the employer gets involved, they've already taken six weeks and then you have to give them their FMLA time. You end up giving the employee a lot more than you're entitled to. But so if you manage your policy so that any of the time taken for those reasons falls under those other provisions anyway, that can help protect the company.
Tim Cynova:
I want to ask you about pay transparency and pay equity. We've talked about and in other sessions around equity and equality being... We'll be talking about it in several other sessions about strict fixed your comp and ways that we can align our pay and compensation with our values.
Tim Cynova:
Many of us hold anti-racism, anti-oppression values, and there's a lot of questions about, can we just list everyone's salary, and then all of a sudden we're transparent? Or what might we want to be thinking about from a legal perspective as we engage in more transparency around what people make, and especially if there's a lot of people who are making different amounts for the same job?
Andrea Milano:
I think step one is probably to do some sort of equity analysis internally before you go public with anything. That is the employment lawyer and me speaking, but to protect the company, I think there are a lot of great resources available, and even some online calculators where you can plug things in and it'll show you statistically speaking, you have an issue here. This comp is problematic because there's no chance this could have happened, but for disparate impact.
Andrea Milano:
So I think it's important to be running those studies. I think it's also important to be communicating proactively with your employees that you're doing it right. There is not pay a quality or equity right now, and so acknowledging that and acknowledging that you're fixing it is the right first step. If people are doing the same job, arguably, they should be making the same money, except for very specific circumstances that you can justify. And I think employers are often looking to justify when maybe they should just be looking to even things out.
Andrea Milano:
So I think getting an analysis done generally by an outside company can be really helpful and eye-opening because your employees are thinking about it. It's such a hot button issue, everyone's thinking about it, everyone's talking about it. So even if you don't address it, that you're not hiding from it. And I think it's better to get out ahead of it.
Tim Cynova:
Andrea, as expected, this has been an amazing 45 minutes with you. I really appreciate it. It's been wonderful and amazing to watch you as you started to fill all of these questions. Thank you to all the questions that were coming in and the chat. Really wonderful. But Andrea, sincerely, thank you so much for being a part of the summit.
Andrea Milano:
Thank you, Tim. This was a pleasure. I'm really happy I could participate. Thank you everyone who attended and asked great questions, and this was awesome.
Tim Cynova:
Find more about the Ethnical Re-Opening Summit, including speaker bios and session recaps at work shouldn’t suck dot c-o backslash ethical hyphen reopening hyphen summit hyphen 2021.
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