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Coronavirus - one virus, many outcomes: returning to the workplace - global

  • Global
  • Coronavirus - Return to work
  • Coronavirus - Workforce issues
  • Employment law

22-06-2020

As parts of the world start to slough off the worst of the COVID-19 pandemic, the old paradigms of work come into sharp focus. Many organisations are viewing this transition period as an opportunity to re-set the ways of working and to use the crisis as a catalyst for real change.

However, it seems that the resumption of work may take different forms across the world, often influenced by measures taken at the outset of the pandemic to seek to control the spread of the virus and legislative, societal, cultural and demographic differences.

In our previous briefing, Coronavirus - Returning to work after lockdown published in April, we highlighted some of the issues for global employers to consider in preparing for and implementing a return to the workplace. Two months on, in this briefing we consider the experiences from different jurisdictions and whether such experiences provide a window into what our new working world might look like post-COVID-19.

Working from home: pain or pleasure?

In many jurisdictions, the experience of remote working has, with certain exceptions, been positive. Productivity is high (where the sector itself has remained buoyant) and employees have confounded expectations in rapidly mastering new technologies. IT systems have largely held up and new creative ways of training, educating and carrying out work functions have proved that, for many sectors, being based in the workplace is not essential to the effective running of business.

Whilst working remotely was by necessity an overnight transformation of the working environment, other considerations, which would normally accompany remote working, followed more slowly. For example, most employers will not have carried out health and safety audits of the home working environment and protection of confidential information and privacy issues have in many instances been after-the-event considerations.

Further, an increasing body of evidence indicates links between remote working and mental health issues if remote working is not managed effectively. Many employers are now considering this issue for the first time. Factors such as the tendency for remote working to blur the lines between work and home life, difficulties of ‘switching off’ when working from home and longer working hours, all have the potential to increase stress for workers. Additional elements such as managing young families at home and wider caring responsibilities, working in shared workspaces within the home and isolation from work colleagues are also important considerations.

Certainly, where remote working becomes more commonplace, there will need to be careful consideration of confidentiality of information and data privacy issues. Further, much closer and more empathetic people management and investment in managing the wellbeing aspects of remote working, including mental health issues. It is important to remember that remote working will be a very individual experience.

In some countries, the response from employers and employees about the remote working experience has been so positive that flexible working is being incorporated into return to workplace planning. Employers are weighing up the cost of expensive office space and overheads against the benefits of having staff together in one place, enabling closer and more effective management.

Media stories focused on ‘the office is dead’ theme are sensationalist but in some jurisdictions, including in areas where city office space is very expensive, the traditional office experience could see change. Many UK employers have been considering whether remote working might be implemented on a more permanent basis for some of their staff and possibly on a staggered basis to reduce the number of workers physically in the office at any one time. A number of US employers, including Facebook and Twitter, have recently announced that remote working will be implemented on a longer-term basis for some parts of their workforces.

However, the experience globally is not universally positive. In some jurisdictions there appears to be no intention to adopt remote working as a regular working model.

Coronavirus - insight from Hong Kong and China

The experience in Hong Kong and China, where workers have often been returning to the workplace over a longer period than other jurisdictions and where employers are now moving to business as usual, provides interesting insight, demonstrating how workplace change, including any uptake of remote working on a long term basis. is likely to be influenced by a number of factors.

Whether an appropriate working environment can be achieved from home is likely to be one such factor. This may be particularly the case in areas of dense population and limited living space. In such cases, workers may be less likely to want to continue to work remotely and there is likely to be an earlier move back to workplace working.

The “fear factor” of a return to work is likely to be another influence. Those jurisdictions, including Hong Kong and China, that have implemented robust systems to identify and trace potential COVID-19 cases have created confidence amongst the workforce that attending work does not put them at additional risk.

The influences of social and cultural environments on approach also has an impact. For example, in Hong Kong, even before the COVID-19 pandemic, and with the history of SARS, respect for public health was already ingrained into day-to-day life. Where workers return to work after ill health, it is commonplace for masks to be worn, respecting the health of colleagues.

In China and Hong Kong, life is returning to a level of normality and businesses are re-opening, but there is little sense of a remote working trend. Workers are confident to return to the workplace, the workplace may often offer a more viable working environment than working from home and there is simply no need to create the structures to support remote working as a new permanent arrangement where there is little enthusiasm from the governments for this. Whilst there may be a little more support from employers and some employees, it doesn’t appear that the pandemic will fundamentally change the approach to remote working in these areas.

Remote working regulation

Given the renewed understanding of some of the benefits that remote working may provide, the increase in its use in some areas and the impact this could have on kick-starting the economy, authorities in some jurisdictions are considering amending existing legislation or introducing new legislation to regulate remote working. At present in the UK, employees can request flexible working but there is no legal obligation for employers to grant a request to work from home. In Germany, the right to work remotely has been proposed by the German Labor and Social Affairs Minister, Hubertus Heil, including to extend this beyond the COVID-19 pandemic.

In Eastern Europe, remote working is also a hot topic. In Hungary, many questions have been raised by employers about remote working, but at present the Labour Code does not regulate this. During the state of emergency, the government issued a decree to the effect that during this time employers could require employees to work remotely, but there are a number of uncertain areas such as health and safety and the liability of employers (in Hungary, employers have strict liability for accidents at work) which have made some employers reticent to embrace remote working. A non-profit organisation in Hungary has recently brought a legal challenge aimed at amending this law on liability, which may encourage further consideration of remote working on a more formal basis.

In Poland, the COVID-19 legislation permitting employers to require employees to work remotely comes to an end on 27 September; thereafter an employer cannot require remote working without an employee’s consent. Where there are a number of employees impacted, this will involve collective consultation and will not be a straightforward process. Currently, it doesn’t look likely that there will be any changes to this legislation to more easily facilitate remote working.

Health and safety

It has long been recognized that the effectiveness of health and safety measures, whether implemented by employers or governments, do not solely rely on mechanisms and sanctions for non-compliance. Often the main factor for effectiveness is achieving the voluntary buy-in of individuals to comply. Again, that is often directly linked to sociocultural factors, which may be driven by past health and safety events. In the context of COVID-19, the proximity to other recent viral crises in the jurisdiction and sensitivities with regard to scrutiny by other jurisdictions and the rest of the world is often influencing behaviours.

If and when employees return to the workplace, it is therefore likely that the need for and extent of measures taken by employers to protect health and safety will be dictated by wider local factors, including the adherence to and effectiveness of public health measures. This will inevitably vary according to the jurisdiction. In China, the population is generally supportive of public health measures, including the QR code app system which has proven to be very effective. When coupled with other measures such as border controls, there are limited additional measures required in workplaces in China. Companies can therefore more easily return to working as before the pandemic.

Issues of privacy will often influence the health measures an employer is able to take. In those jurisdictions where remote working is to be incorporated into temporary or permanent working arrangements, carrying out health and safety audits of the home working environment will not be a straightforward process and in some countries, employees may feel more sensitive about this intrusion into their private lives.

In some jurisdictions, including the UK and the US, certain adjustments must be made to the working environment for employees with disabilities, which adds a further layer of complexity to the implementation process.

Contact tracing and quarantine wristbands

As we start the process of a return to workplaces, management of the virus will take centre stage in the new working world.

Contact tracing is one way of monitoring and managing the potential spread of the virus. The World Health Organization’s emergencies chief, Dr. Michael Ryan, recently expressed concern in relation to those countries without robust contact tracing measures, equating this to “Shutting your eyes and trying to drive through this blind”.

But it has been demonstrated that attitudes towards test and trace apps vary across the world. Since such apps need to be widely adopted to be of any substantial use, attitudes towards their use will make or break their effectiveness. Again, there is often a huge cultural divide; in Asia, public health concerns generally override privacy issues, whereas in Europe, privacy often takes centre stage.

In Western Europe, there is generally a deeply held suspicion of the use that such apps may be put to. In Germany, for example, the implementation of mandatory tracing – which suggests a form of surveillance – would not be well received. In the UK, scepticism has been vocal about the use of Test and Trace. Further, within the EU, data protection issues will arise with regard to the processing of information, which complicates the use of such apps.

However, even within the EU, there is some indication that privacy concerns may be less dominant than expected in some countries. In Italy, for example, despite privacy concerns being raised in relation to the Immuni contact-tracing app, that non-mandatory app was subsequently downloaded by over 25% of those given access to it in the first ten days.

In China, the use of the QR code app system, with a colour code corresponding to health status and risk, is mandatory to access workplaces, public transport and restaurants. A green code allows entry, whereas a yellow code requires self-quarantine and a red code supervised quarantine.

Whilst there is no use of any QR code app in Hong Kong, residents entering Hong Kong are required to wear an electronic wristband for the period of 14 days after arrival, enabling compliance with quarantine requirements to be monitored. Any breach is a criminal offence and adherence is taken extremely seriously. A similar measure has recently been enacted in Malaysia, with those returning from overseas required to download the MySejahtera application and wear a quarantine wristband for identification and monitoring purposes.

Open borders?

The risk of a second spike of cases will also influence any changes to the workplace on return, with the issue of imported cases and border controls being key.

New Zealand famously closed its borders at the outbreak of the pandemic and successfully contained and, apparently, eradicated the virus within the country. On 8 June 2020, New Zealand announced that the country would enter level one (lowest on a four-level scale) of COVID-19 restrictions, meaning the removal of all restrictions, including workplace and social distancing measures, with the exception of the reopening of borders, which are to remain closed indefinitely. In East Asia, the borders were closed at the outset and are now opening with strict restrictions and in limited circumstances.

The unified nature of the EU means that countries within the EU have been slow to consider border closures. The UK’s borders have remained open throughout the pandemic, with no screening measures in place for those entering the country. On 8 June 2020, the UK introduced a 14-day quarantine on arrival into the country, although there are concerns about the effectiveness of this measure and whether policing of the quarantine will be adequate.

Questions will inevitably arise around the possibility of a second spike in countries with open borders. Employers are generally exercising caution and where feasible, employees who have been working remotely continue to do so. Many are expecting to work from home until at least the end of the year. In East Asia, by contrast, employees have been returning to the workplace in force and reports suggest that the virus is under control.

Reorganisations and changes to terms

As the terms of the employment relationship begin to be re-set across jurisdictions, many employers are considering more fundamental changes that will change the shape of the workforce post-COVID-19, including changes to working time, reorganisations and workforce reductions. The need for such changes often depends on how the business has fared during the pandemic, which will in turn depend on how it has been able to respond to the changed environment.

However, many global employers are also looking at how they can re-size and re-fit their workforce for a post-pandemic world. For example, certain business functions including marketing events and in-person business development are going to be performed in a very different way in both the short and longer term and global companies are looking to see if they have the right people in the right teams to reflect these changes. It seems likely that we will see more and more restructuring as a result of these type of changes as well as more traditional downsizing.

In a collective context, such plans will in many jurisdictions engage the involvement of works councils and/or trade union or employee representatives. In the UK, collective consultation requirements are triggered where 20 or more dismissals are proposed at one establishment within any 90-day rolling period. This consultation requirement applies not only to job losses but also to contract changes where there is insufficient flexibility within the contract terms and where dismissal and reengagement is to be used if consent to changes cannot be achieved.

Carrying out a reorganisation exercise across multiple jurisdictions will necessarily be a complex issue and in most countries involve collective consultation.

Looking to the future

Whilst it has been widely publicized that there is likely to be a new dawn of workplace arrangements, it appears from the experience so far that a globally-consistent working model post-COVID-19 is unlikely to be realized. The pandemic may fundamentally change the ways in which we work in some jurisdictions, less so in others. In many jurisdictions, including the UK, the pandemic has accelerated the digital transformation and won hearts and minds over to the real possibilities of remote working on a more permanent basis. In East Asia, however, workers are returning to the workplace in much the same way as before and there is little discussion about flexible working models becoming commonplace.

Data protection concerns and cultural sensitivities into issues of privacy will dictate what measures an employer feels able to take to secure their employees’ safety and minimise risk of cross infection and which measures employees feel comfortable accepting. Many other factors, including economic, societal and cultural differences, measures taken in response to the pandemic and the timing of such measures, will also all influence the shape of the new workplace.

The pandemic  does however offer a unique global opportunity for positive change. For all employers, there are likely to be valuable lessons to be learned from the lockdown period. For some, this may result in radical changes to the working model. For others simply returning to ‘normal’, those learnings can be used to make the normal better than it was before. Whether that equates to more flexible ways of working, different ways of communicating and meeting, more rigorous health and safety checks or safeguards or the revision of confidential and privacy policies, it’s an opportunity that should not be overlooked.

Our extensive global footprint means that we are well placed to help employers, wherever they have a presence. Our teams across the world have been supporting employers to steer through the legal and practical employment implications raised by the COVID-19 pandemic.

Please contact the following partners if you require advice and assistance:

Global:

Diane Gilhooley
Hannah Wilkins
Elizabeth Graves
Constanze Moorhouse

US:

Scott McLaughlin
Michael Woodson
Michael Hepburn
Marlene Williams

Asia:

Jennifer Van Dale
Jack Cai

Europe:

Frank Achilles
Deborah Attali
Valentina Pomares
Ingrid van Berkel
Wijnand Blom

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