How Has the COVID-19 Pandemic Shaped the Future of Work?

Lisa Nagele-Piazza, J.D., SHRM-SCP By Lisa Nagele-Piazza, J.D., SHRM-SCP November 16, 2020
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Uncertainty has become the norm in 2020 as employers and employees respond to the COVID-19 pandemic and evolving needs in a time when safety is paramount. What long-term effects will the coronavirus crisis have on the workplace? Panelists weighed in during a session at the American Bar Association's 14th Annual Labor and Employment Law Conference. 

The pandemic and its economic impact are disproportionately affecting low-wage earners and people of color, said Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School. Employers and other key stakeholders should take the opportunity to not just make it through the pandemic but also to address long-standing social justice issues, she said.

Employers and federal and state leaders should develop more collaborative decision-making processes and find more ways for workers to have a voice, she added.

"We have a tremendous amount of rebuild that we need to do," said Julie Su, secretary of the California Labor and Workforce Development Agency. "We're not going to be able to focus on the rebuild until we get a handle on the virus."

Workplace Rights and Responsibilities

Leaders have many issues to tackle as a result of the pandemic. How can they keep people safe when they report to worksites during the COVID-19 pandemic? How can leaders ensure that people are financially secure when they can't go to work? Block said she would like to see more joint problem-solving with employers, labor unions, advocates and government leaders.

Su noted that the pandemic exposed the inadequacies of social safety nets for many workers. Although the federal government and some states passed temporary laws expanding unemployment and paid leave benefits, many of those programs are set to expire at the end of the year.

Should temporary measures be expanded to allow more workers to take paid time off when they are sick and receive unemployment benefits when they can't work? "If workers do not have a choice, we are not going to be able to stop the spread of the virus," Su said.

She noted that many employers have offered benefits that go beyond the law. Some employers have extended paid-leave benefits, continued to pay health benefits after a company shutdown and paid employees while worksites were closed for deep cleaning.

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Safety is essential for employees who remain in the workplace, said Richard Simmons, a management attorney with Sheppard Mullin in Los Angeles. He noted that many of the steps employers are taking to protect employees—such as taking workers' temperatures each day—are only permissible during a public health emergency.

When stay-at-home orders first took effect earlier this year, Simmons said, employers realized that they could no longer assume that the laws they had been applying for years would make sense during the pandemic. "Without notice, we were forced to apply laws to situations that had never previously existed."

Wage and hour laws, protections from discrimination, and public safety and health requirements all needed to be adapted to shifting workplace norms.

Employers have to figure out what they can do now and in the future to continue to comply with the letter and the spirit of the laws, he said.

Benefits for Gig Workers

The benefits of working as an independent contractor, rather than an employee, include arranging flexible schedules and working for more than one company. The pandemic, however, has highlighted the lack of a safety net for many independent contractors, particularly those in the gig economy.

Independent contractors generally aren't entitled to employment benefits, such as minimum wage, overtime pay and unemployment compensation. The federal government, however, temporarily allowed contractors to collect unemployment benefits through the end of the year.

"The reality is that our law is out of date," Block said, noting that a new approach to collective bargaining rights may be needed for independent contractors who don't currently have employment protections.

"The increase in the gig economy—the uncertainty that it's given rise to—is an important argument for rethinking our labor law," she said. "We need [to] think about new labor laws that would include workers in the gig economy."

Federal and state laws differ on what makes a worker an independent contractor or an employee. California has one of the strictest laws, making most workers employees, though voters recently approved an exception for app-based drivers in the gig economy.

Employer groups and worker advocates continue to debate the merits of strict employment classification laws. As a management-side attorney, Simmons said he finds that many people want to be classified as independent contractors for the flexibility. "I think the division between California and federal law is incredibly confusing—very difficult to navigate—and unless employers simply capitulate by treating everyone as employees, it's a real dilemma for businesses and for people who have a reason to want to be classified as independent contractors," he said.

More changes may be on the horizon for determining independent-contractor status. The U.S. Department of Labor (DOL) proposed a new rule in September that would adopt an "economic reality" test. If finalized, the proposed rule would make it easier to classify workers as contractors. President-elect Joe Biden, however, supports a broader definition of "employee" and is expected to withdraw the DOL's proposal.

The Digital Divide

"We have seen a rapid and dramatic transformation in workplaces […] over just the last 10 months," Su said, noting that one of the most dramatic changes was the shift to remote work. "In the workplace, we've seen a divide between those who can work from home and those who cannot."

The pandemic has also highlighted the importance of technology in the workplace, she said. A big question during the COVID-19 pandemic is: How do we utilize technology to improve the lives of workers rather than just to automate repetitive tasks?

"As we look at rebuilding our economy, we need to look at how we can do that to be more equitable and inclusive," Su said. 

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