Is Karaoke Dead? An Employer’s Guide to Post-Pandemic Life

Is Karaoke Dead? An Employer’s Guide to Post-Pandemic Life

Three months ago, many Florida businesses enjoyed the “normal” ups and downs associated with business operations, low unemployment rates and relatively high worker morale. Then, COVID-19 forced many employers into hasty, radical change: exchanging traditional office space for telework; shuttering customer-facing operations; balancing employee health, child education and parental welfare with continuing business needs; and grappling with resulting financial fallout in an uncertain economy. As employers continue to navigate this complex and fluid landscape, the time will come to shift focus from these challenges to those associated with reopening and returning to business operations. While society may never again see crowded bars full of karaoke patrons sharing a mic while belting out their favorite tunes, this article offers employers a few paths to move forward towards a “next normal.” 

Don’t Stop Believing: Is it Time to Reopen?

COVID-19 ushered in federal, state and local government guidance related to mitigation measures and social distancing. Now, as stay-at-home restrictions begin to lift, employers must evaluate whether they can and should reopen. That decision requires evaluation of business and health-related matters and consequences, depending on the employer’s type of business, including services provided, business readiness, and applicable governmental directives.

• National Plan: President Trump’s Opening Up America Again[1] phased-approach to returning Americans to work begins with gating criteria related to symptoms, cases and hospitals. Generally, within a 14-day period, a state must have a downward trajectory of (1) reported influenza-like illnesses (ILI), (2) COVID-like syndromic cases and (3) either documented cases or positive tests as a percent of total tests (flat or increasing volume of tests). Hospitals must be able to treat all patients without crisis care and have robust testing programs in place for at-risk healthcare workers, including emerging antibody testing.

In all phases, employers are encouraged to develop and implement policies regarding social distancing, personal protective equipment, temperature checks, sanitation and business travel. The three phases recommend telework when possible and feasible for business operations with Phase One[2] allowing return to work in stages with common areas remaining closed and social distancing protocols enforced and Phase Three[3] allowing unrestricted staffing of worksites. Schools, day cares and camps may reopen in Phase Two.[4] Certain venues, such as sit-down restaurants, gyms and movie theaters, may operate under varying levels of physical distancing depending on the phase, as well as compliance with sanitation protocols. Bars remain closed until Phase Two and then reopen, with varying standing room protocols easing over time.

• Florida Plan: With his “safer at home” order set to expire on April 30, 2020, Governor Ron DeSantis formed the Reopen Florida Task Force, comprised of government, industry and small business leaders, with hopes of formalizing and announcing a plan to reopen Florida on Friday April 24, 2020. With no formalized plan, DeSantis requested the task force submit suggestions by Sunday April 26. In the interim, on April 25, DeSantis said reopening Florida would start with “a very small step” and focus on safety and he echoed those sentiments on April 27 when he advised the reopening of Florida would be “methodical” and “data driven.” DeSantis has previously touted expanded COVID-19 and antibody testing and foreshadowed any plan to reopen Florida would likely include a phased reopening depending on type of business and locale. The task force also opened a comment submission portal through which Floridians could provide feedback as the task force prepares its final report.

On April 29, DeSantis reported Florida met the national gating criteria, unveiled his “Safe. Smart. Step-by-Step.” plan to reopen Florida and confirmed Florida’s steps toward reopening would be “small, deliberate, methodical” and “smart.” Those steps will commence statewide May 4 (excluding areas of Southeast Florida, including Miami-Dade, Broward and Palm Beach counties) and will move forward under the following Guiding Principles:

• Public health and safety.  Every measure of reopening should consider Floridians’ health and safety.
• Health care system readiness. Hospitals should focus on (1) returning operations to normal while maintaining capacity to treat COVID-19 patients in the event of medical surge and (2) developing models for medical supply sustainability and medical resource sustainability without public augmentation.
• Protection of the vulnerable. The state is taking actions to protect Floridians over the age of 65 and those with serious underlying medical conditions.
• Economic recovery. Support the highest practicable level of business
• Protection of Civil Liberties & Maintaining Individual Rights. Impose the least restrictive measures feasible to accomplish the specific medically necessary objective.
• Public Confidence. Mitigation strategies should be based on sound medical judgment, driven by health metrics and communicated effectively.
• Partnership with Local Communities. The state will partner with local communities, which have unique insights into their individual circumstances.

Mirrored after Opening Up America Again, Florida’s plan will be three-phased, and DeSantis was hopeful each phase would last weeks, not months (but reiterated stepping through each phase would be data-driven). Although DeSantis has yet to reveal specific details of all three phases, he did discuss Phase One, which includes continued distance learning for schools, prohibition against visitation to senior living facilities and no change for movie theaters, bars, gyms and personal services. Restaurants may offer outdoor dining with six feet between tables and indoor dining at 25% capacity (while maintaining CDC social distancing requirements). Retail may operate at 25% indoor capacity (also with social distancing requirements). Elective surgeries may resume as long as hospitals maintain surge capacity, have their own PPE supply and work with long-term care facilities to prevent outbreaks. DeSantis also committed to expanded testing, including drive-thru and walk-up testing and mobile labs, so he could re-evaluate restrictions remaining in place.

• Municipal and County Plans: Local government officials are also forming groups of civic leaders to evaluate timelines to reopen cities and counties. For example, Jacksonville Mayor Lenny Curry is consulting a group of health and business leaders in an effort to reopen the city in coordination with the reopening of the state. In Central Florida, a 44-member Orange County Economic Recovery Task Force was formed with industry leaders contemplating a phased reopening process starting with low customer interaction businesses and working up to theme parks and other high-interaction businesses.[5] This Task Force has already released a plan of its industry-specific recommendations, including mandating temperature checks for certain employers, requiring face masks for certain employers and requiring ample hand sanitizer and cleaning.  Miami-Dade County Mayor Carlos Gimenez is working with tourism leaders to develop a strategic plan for reopening the beaches, hospitality and tourism industries.

While keeping these directives in mind, employers must assess the steps they took during the scale-back or shutdown process, including furloughs, layoffs, pay reductions, hour reductions, and telework, and then consider their obligations related to restoration. Some questions employers should ask are:

• Is the business subject to specific terms under any relief programs, including the Coronavirus Aid, Relief, and Economic Security (CARES) Act, the Paycheck Protection Program or Florida’s Short Time Compensation Program?

• Is the workforce, or part of it, subject to recall rights under a collective bargaining agreement?

• Does reopening mean recalling or rehiring past employees or outsourcing certain functions?

• If recalling or rehiring employees is no longer viable, what are the employer’s obligations if a temporary furlough becomes a long-term reduction in force?

• Is now the time to relocate some operations or personnel or reclassify regular or contingent personnel?

In evaluating these questions, employers should keep the following matters in mind.

The Safety Dance: What Safety Measures Should Employers Consider?

While myriad individualized factors (industry, size, types of workers, services provided) will inevitably need to be considered before reopening, there are several issues and concepts all employers will face.

For example, the manufacturing industry may need a plan to ensure employee safety, including re-thinking workflow and social distancing within a plant to ensure sanitation of all shared plant equipment.  A service industry business (such as a call center) may have discovered more tasks employees can accomplish remotely and may need to focus on reshaping work duties, assignments and managing a remote workforce.  By contrast, a retailer, restaurant or bar must not only consider employees’ safety, but also address public health considerations (including whether patrons will flock to karaoke night to brave the stage and sing into a microphone used by countless others throughout the night).

This article cannot and does not attempt to touch substantively every existing challenge, and we strongly advise individualized legal advice specific to the employer and industry.  However, most employers should at least consider the following measures. 

Don’t Stand So Close to Me: Social Distancing

Implementing social distancing is key to halting the spread of COVID-19. Employees must maintain safe distances between each other and the public during every interaction and transaction. To do this, employers should:

• Discourage workers from using other worker’s phones or shared work tools and equipment whenever possible;
• Ensure break areas accommodate distancing with regular disinfection of all eating surfaces, shared refrigerators, vending machines, etc.;
• Space workers 6-feet apart at the worksite when possible;
• Stagger work schedules and decrease public capacity in any store or space where the public enter;
• Eliminate large work-related meetings and gatherings;
• Cancel or postpone work-sponsored conferences, tradeshows, etc.;
• For retailers, post signs asking people who are sick not to enter the store and advise customers the retailer is excluding sick employees from the workplace to allow customers to feel confident entering;

It’s Getting Hot in Here:  Temperature Checks and COVID-19 Testing

Temperature checks and COVID-19 testing would normally constitute an overly broad medical exam under the Americans with Disabilities Act as well as Florida’s non-discrimination laws. However, employers must consider available measures to screen persons exhibiting COVID-19 symptoms. On March 19, 2020, the EEOC issued updated guidance on temperature checks, indicating: “[i]f pandemic influenza symptoms become more severe than the seasonal flu or the H1N1 virus in the spring/ summer of 2009, or if pandemic influenza becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees’ body temperature.” Similarly, employers may consider requiring COVID-19 screening tests, which will allow contact tracing and reduce the risk of additional exposure. On April 23, 2020, the EEOC opined, “during a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus… such as fevers, chills, cough, shortness of breath, or sore throat.” Further, employers “may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others.”

However, the EEOC cautions any mandatory medical test must be “job related and consistent with business necessity,” and notes employers must consider additional information from the CDC and other authorities. And, in perhaps the most equivocal guidance provided, the EEOC warns “employers should ensure that the tests are accurate and reliable” but provides no guidance on ensuring such accuracy and reliability.  In fact, we are inundated with daily news reports regarding the inaccuracy and unreliability of almost every test available. The EEOC does reiterate any information obtained from such testing or temperature taking must be maintained as confidential.

Employers must be hyper-vigilant in establishing detailed protocol and consistent processes for conducting such screenings (including checking temperatures of all individuals with regular access to the worksite – not just other employees but contractors, vendors and visitors), and ensuring employees are paid properly for the time it takes to be screened.  Temperature checks and COVID-19 tests should be conducted in a way that is safe for all concerned, and the employer must provide notice regarding the screenings.

Employers with operations outside Florida should also ensure no state or local laws further restrict these screenings.  While Florida has no such statutory restrictions, several other states are far more restrictive.  

Behind the Mask:  Face Coverings

Some state and local governments are requiring cloth face coverings in public and by employees who interact in public.  The CDC recommends use of cloth face coverings in public but suggests, at least for healthcare providers, homemade masks are not PPE under OSHA regulations. OSHA has also recently issued guidance for retail workers noting retail employers should allow workers to wear masks over their nose and mouth to prevent them from spreading the virus.  OSHA has additionally noted employers should “provide a face mask if feasible and ask the person to wear it, if tolerated.” Although the CDC recommendation is for voluntary use, an employer could be compelled to require certain employees to wear masks if they are considered medium or high risk for exposure. 

While Florida has no specific recommendation as to face coverings, many Florida counties have varying degrees of requirements for face coverings for employees and customers of essential businesses.  Certainly, such face coverings may have safety benefits, and employees should allow employees, who voluntarily choose, to wear them.

If an employer mandate the use of such coverings,  then the employer should conduct the analysis and training required by OSHA for PPE usage. OSHA standards generally require employers to provide PPE to employees free of charge with limited exceptions.  Thus, in addition to the required training, an employer should provide such face coverings.  Employers requiring face coverings should also consider implementing the following additional measures:

• Provide hand sanitizer to employees and around common use areas of a workplace;
• Provide disposable gloves and gowns – note that disposable gloves and gowns compatible with the disinfectant being used are required to be provided for certain tasks including the handling of trash.

Time for Change: Workspace Redesign

Although workplace redesign will vary for every employer, come considerations include:

• For retailers, consider installing Plexiglas barriers to enhance social distancing;
• In a call center environment, move desks to provide for a 10-foot circumference barrier between employees;
• Prohibit use of shared telephones, computers, headsets etc.;
• Physically redesign a previously “open office” concept to create walled off spaces / offices for employees;
• Install automated doors throughout including doors leading to main work areas, into a break room or cafeteria, bathrooms etc.;
• Evaluate and upgrade HVAC systems to reduce spread of viruses and bacteria before allowing employees to return to work;
• Install cleaning stations throughout the workspace;
• Install signs and taped lines around a store or a workspace directing traffic flow and/or notifying others of the physical distance between individuals;
• Creating new positions to ensure safe traffic flow, offering wipes / hand sanitizers to customers or employees, relaying messages to allow customer comfort;
• Consider permanently changing some jobs to “work at home jobs”;
• Stagger work schedules.

A Whole New World:  Are Pre-Pandemic Policies Sufficient Post-Pandemic?

While it is advisable to continually review and update all employment policies, employers should review the following policies when considering reopening:

• Recall policies (including collective bargaining agreements). Some employers may determine their timetable for returning employees to work is slower than anticipated or involves returning fewer total employees permanently. Employers must evaluate obligations under existing policies and CBAs, as well as the federal Worker Adjustment and Retraining Notification Act and other similar state and local laws that may require notice if temporary furloughs become permanent layoffs. If no policy or practice exists, consider creating a policy with the following concepts:

• • • Evaluating whether the furloughed employees should be treated as new hires based on the length of furlough
    • Assessing and determining the order and pattern of recall (if applicable CBAs do not require seniority)
    • Providing a recall letter in advance of the return to work date
    • Determining whether background checks should be rerun
    • Adopting a work share program for employees on reduced schedules (this may allow continued unemployment benefits for some employees)
    • Implementing staggered work schedules and continuing telework for certain positions

Employers should also create a plan for employees in high-risk infection categories:

• • • Allowing continued telework or extended leave until employees in this category feel comfortable (reduce risk of abuse by implementing voluntarily reporting of “high risk” without any documentation)
    • Increasing measures to protect high-risk employees when working onsite as an alternative to allowing continued leave such as isolated workstations, additional PPE, fewer days in the office

The policy should address employees unable or unwilling to return to work:

• • • How to handle an employee’s fear of returning to work without more
    • How to handle employees who have family obligations such as child care issues considering ongoing lack of schools / summer camps
    • How to handle employees who remain under quarantine due to exposure

• Paid sick / vacation / paid time off policies. Revise to allow flexibility for persons exhibiting COVID-19 symptoms or who reside with someone exhibiting symptoms including specifying whether such employees must stay out of work and to adjust to reflect actual business need and regulatory requirements. 
• • Consider addressing PTO banks or donation of PTO
  • Consider implementation or revision of any policy addressing use of or payout of PTO at separation (termination or furlough)

• Leave of Absence policies.

• • Consider relaxing timing for required documentation
  • Consider flexibility regarding absences particularly for employees with children who cannot attend a physical school, daycare or summer camp due to social distancing
  • Consider revising time off request policies allowing flexibility with requests and procedures

• ADA policy and documentation requirements.

• • Review ADA policy with an eye toward ensuring flexibility in enforcing policy given the risk to the health of others
  • Review any accommodations policies particularly with respect to working from home

• Implementing any new policies.

• • Social distancing policies
  • Defining customer / visitor protocols
  • Safety policies – new PPE requirements
  • Review and consider new benefits for employees including “wellness” policies, EAP, parenting resources, considerations for employees with child care issues

• Compensation policies.

• • Consider continuation or restoration of pay and working time reductions and accruals
  • Consider resetting performance criteria and targets
  • Consider impact to equity compensation
  • Consider forgiveness of certain employee debts
  • Consider incentives / rewards for those who “never left”

• Pre-planning policy for future outbreaks.

• • Plan now and create and adopt emergency procedures for future outbreaks including the potential of an exposure at the workspace
  • Consider requiring employees to report respiratory symptoms to stay home / self-report
  • Consider tracking sick employees
  • Consider implementing measures making remote working easier
  • Consider cross-training employees if possible
  • Establish guidelines for increased facilities cleaning and contaminated waste disposal
  • Update emergency and non-emergency communications policies
  • Consider provision of company-controlled cell phones for employees if employees may work from home
  • Consider updating travel policies to take into account impact of current or future travel restrictions

I Will Survive: What if There’s a Relapse?

As part of the process in determining whether a business should reopen and when, employers should engage in contingency planning for a COVID-19 relapse and potential slowdowns, shutdowns or restructuring. Understandably, during the past few months, employers have undoubtedly assessed staffing needs. At the same time, employers may have revisited their mission and core values in light of current market conditions. What are the company’s “essential functions,” and who are the essential workers necessary to propel the company into the future? These same individuals will be instrumental in sustaining the company through any relapse. Employers should take this opportunity to reinforce existing HR and IT support systems.

Employers should also consider how they can strengthen ties to their customer bases, including adapting business models to provide services to customers in a different way, if customer-facing options are again limited, while keeping employees engaged and working. Over the past few months, we have all experienced increased telework, home delivery and online services. Employers should obtain and maintain the technology, marketing, and other resources necessary to not only ensure a smooth transition for employees working from home but also to reach customers on various media platforms.

Taking the time now to recommit to adapting to future changes will allow employers to transition from the initial survival struggle and reactionary response to COVID-19 to a proactive, balanced approach to business in the post-COVID-19 world (which hopefully includes virtual karaoke, because let’s face it – who couldn’t use the stress relief right now).

Kimberly Doud and Nancy Johnson both practice law in the Orlando, Florida office of Littler Mendelson, the largest labor and employment law firm representing management. They are available to provide COVID-19 legal advice. For access to on-demand webinars and in-depth advice regarding these and other challenges facing employers with the onset of the COVID-19 pandemic, visit littler.com/coronavirus.