After what began like a cannon shot in early 2020, the COVID-19 pandemic seems to now be very slowly drifting into endemicity. While Seyfarth continues to advance industry thinking on the Future of Work, employers must not lose sight of the short-term demands and risks they face in the days and weeks to come.
As the restrictions imposed on workplaces due to COVID are relaxed in many countries, there may be a temptation for employers to themselves relax, expecting that work will now return to normal (or to a ‘new normal,’ as increasing numbers of employers embrace more flexible working models).
As we approach the end of the year, and 20 months since the pandemic first hit, now is the time for employers to reflect on where COVID has brought them, and the road ahead. We have signposted some of the hazards, as they navigate into 2022.
1. Remain vigilant for changes
First up: while the position certainly looks more positive than it did 20 months ago, the pandemic is far from over. Infection rates are soaring in some countries, and local rules can be subject to sudden change. In the last month, due to the position worsening in Singapore, home working is once again mandatory, while Russia implemented an abrupt lockdown in Moscow. Germany is on alert, and just last week the Netherlands went back to requiring most employees to work from home until further notice alongside reintroducing various previously relaxed measures for those who do attend the workplace, such as use of face masks or social distancing.
Approaches to workplace testing and vaccination requirements also continue to vary widely between countries, and even between different provinces within countries. On the basis of a drop in the infection rate, the Danish government revoked employers’ temporary right to require their employees to test and disclose their results. But as rates have increased elsewhere, the Dutch government changed its stance on whether an employer can ask an employee their vaccination status; the Hungarian government mandated compulsory vaccination in state offices and empowered private employers to require mandatory vaccination for their employees; and Italy now requires mandatory “green passes” (attesting that an individual has either been vaccinated, or recently tested negative/recovered from COVID) in all private workplaces until 31 December 2021.
2. Are COVID arrangements still “temporary”?
While the pandemic saw new restrictions introduced, it also led to the relaxation of many formal requirements, which either employees or employers have been able to take advantage of. As we approach 20 months of the pandemic, can those working arrangements still be seen as “temporary,” especially where no longer mandated by governments? Failing to take stock now can have unforeseen consequences.
Hybrid/home working arrangements: Flexible working policies or office closures would normally require consultation and trigger works council or union obligations in many countries. There was scope to skip these on an “exceptional” basis in the pandemic, but continuing arrangements could create liabilities and damage employee relations. Remote working policies need to be shared and negotiated with works councils and employee representatives in many European countries, and in some cases even need their agreement.
Formally documenting any change of work location: Where an arrangement is no longer “temporary” it may trigger a formal contractual change for employees, or require a specific form of teleworking agreement in Europe and in South America. In some countries, such as Italy, there are fines for failing to notify remote or “smart working” agreements to the labor authorities. And a permanent office closure can involve a lengthy procedure in European countries even where employees have been remote working during COVID.
Keeping temporary arrangements, temporary: Not all employers are ready to adopt full flexibility on a permanent basis. If employees are allowed to continue remote working, because they are unvaccinated or have specific health issues, employers should be careful how this is managed so that it avoids becoming an acquired right/permanent entitlement, as well as to avoid those employees becoming “invisible” or being side-lined, which could lead to discrimination or constructive dismissal liabilities.
Employees working from different countries: Many local tax and social security authorities did not clamp down on individuals working from different countries during the pandemic, recognizing the unique circumstances, but these tax exemptions have generally now ended. Employers should make sure they know where their employees are, and involve their tax and HR teams in any decisions going forward.
3. Managing the end of the vacation year
The end of the calendar year will also mark the end of the holiday year for many employers. Travel restrictions and lockdowns have left many employees with larger-than-normal amounts of accrued untaken vacation.
Employers in this position will want to:
assess which employees have large amounts of vacation yet to take and or have not yet taken the minimum amount of leave required by law (20 days, in most European countries—although some countries such as the UK have a temporary exception because of COVID).
consider ways to encourage or force employees to use up this excess vacation. In some countries, such as the Netherlands, Poland, and some Middle East countries, employees are entitled to carry vacation forward, but employers will want to discourage employees from “banking” large amounts of vacation where they can.
Company shutdowns (such as nominating the week between Christmas and New Year) could be an option, but in many countries this will require employers to provide employees with advance notice or comply with information/consultation requirements with works councils, unions, or employee representatives.
4. Adjusting pay and workload for the end of state subsidies
Autumn has seen the end of many state schemes that subsidized wages for employees placed on reduced hours or furlough during the pandemic, including the Netherlands’ NOW scheme, the UK’s Coronavirus Job Retention Scheme, and Sweden’s short term working programme. As a result, employers will be reverting back to ‘normal’ methods of managing the supply and activities of their workforce, e.g., zero hour contracts, short time working clauses, general cost cutting measures, or redundancies.
Employers should nevertheless keep an eye on any other workarounds being introduced at a national level; for example, in Germany the short time working scheme was recently extended until the end of the year. And last week the Dutch government announced plans for a new subsidy to support businesses directly impacted by the latest COVID-19 restrictions—this follows just 6 weeks after the previous state subsidy scheme drew to a close.
Navigating employment waters during the pandemic has been a bumpy ride. While we encourage employers to be preparing for a Future of Work that will be very different, in the short-term, employers should remain buckled up and keep a close eye on the road ahead over the coming days and weeks.