Returning to Work

There are many states where stay-at-home is still the norm, but many others are starting to loosen those rules and reopen the local economy. For better or worse, businesses are opening their doors to customers and workers are returning to their jobs while protocols such as “social distancing” and wearing face masks remain in place.
While construction has been declared an essential operation in most states, construction employment still declined by 975,000 jobs in April according to the AGC (Associated General Contractors of America) and data show deteriorating demand for construction. AGC believes the new data underscores the need for new federal measures to help the construction industry recover, including infrastructure funding, safe harbor provisions, and fixes to the PPP (Paycheck Protection Program) guidance.
As governments urge a restarting of the country’s economic engine, safety still is the priority. During the past few months, most contractors and subcontractors have minimized the office staff or arranged remote working for non-field personnel. Carpenters still need to be swinging hammers on the jobsite, but accountants can do their numbers from home. Bringing the remote workers back to the office is not as simple as calling them up and telling them to come back. The coronavirus has changed the rules and, in some places, the laws on the work environment.
According to consultant firm McKinsey & Co., companies should plan in detail on how the returning workers will be handled. Successful companies will redesign their operations and supply chains to protect against a wide range of potential shocks. In addition, they will act quickly to rebalance their asset base and supplier mix, including increased use of external suppliers to supplement internal operations, greater workforce cross-training, and dual or even triple sourcing.
The ABA (American Bar Assn.) reports that, with many states softening their shelter-in-place orders and allowing businesses to reopen, one job that might be in great demand was something seldom heard of before the arrival of COVID-19: temperature takers. Requiring workers to have their temperatures taken before punching the time clock could become the new normal for some months in many U.S. workplaces. So might mandatory COVID-19 testing, antibody testing, self-reporting of symptoms, and other guidelines that relate to employee safety, privacy, and other workplace legal issues. But are these and other employer-imposed pandemic response requirements legal?
Even before COVID-19, McKinsey claims, performance in the construction sector had been subpar compared with other industries. Stagnant productivity, low levels of digitization, and low profitability have dogged the industry for years—as have its highly bespoke building approach, fragmented ecosystem, and high share of on-site manual labor.
Now COVID-19 has forced states and federal agencies to consider new health and safety measures, many of which will impact construction at both the office and jobsite. Previously, under the federal ADA (Americans with Disabilities Act), a company could generally require a new employee to take a physical exam as a condition of work. But the U.S. EEOC (Equal Employment Opportunity Commission) has issued guidance, most recently in a May 5 update, noting the steps an employer can take to safeguard its workplace and the accommodations an employee should expect. Previous EEOC guidance cited Centers for Disease Control warnings about “community spread” and determined measuring a worker’s temperature would be permissible during the pandemic.
A complex umbrella of federal and state laws guide the employer-employee relationship during the pandemic, including worker civil rights protections under the ADA and a handful of other federal laws, such as Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. In addition, the OSHA (Occupational Safety and Health Admin.) general workplace rules require employers to establish a workplace that’s “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees.
Among new guidelines OSHA has issued are for employers to instruct their employees to keep six feet away from co-workers or customers when possible, take temperatures, disinfect surfaces, and provide face masks, hand sanitizers and barriers when appropriate. Reports indicate that at least several thousand COVID-19 safety complaints have been filed by workers with OSHA since the first of this year. Many could end up in administrative hearings and potentially in court.  Courts have repeatedly upheld the power of Congress, which passed the OSHA Act of 1970, to require employers to provide workers “safe and healthful working conditions.”
The unsettled question is whether an asymptomatic COVID-19 infected individual is “disabled” within the meaning of the law, although the employer could raise an affirmative defense because under federal law an employer can refuse to employ an individual who poses a “direct threat to the health or safety of others in the workplace.”
But what about an employee who only has a fear of infection? Would that concern, absent any symptoms, diagnosis or prior conditions, provide a worker the basis to refuse to return to work under the ADA or other law if a state’s stay-at-home order were lifted and the employer did not consider the worker disabled? Would the employee’s job be protected?
In September 2019, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit ruled unanimously that the ADA only protects persons with current disabilities or impairments, not “a potential future disability that a healthy person may experience later.” The case involved a Florida business that fired an employee who refused to heed the employer’s request not to travel to Ghana in 2014 during an outbreak of the Ebola virus. The EEOC aligned with the employee’s position that she was fired unfairly under the ADA.
But the court concluded “that the disability definition in the ADA does not cover this case where an employer perceives a person to be presently healthy with only a potential to become ill and disabled in the future due to the voluntary conduct of overseas travel.” Her termination stood.
The changes in law and the new rules being required or requested by states and localities will create a confusing environment for a while as employers and employees alike test each other’s acceptance of the return-to-work conditions. Companies will have to plan for this and create a new operational environment.
Creating this new level of operations resilience could be expensive, in both time and resources. The good news, however, is that low-cost, high-flexibility operations are not only possible—they are happening. Most companies were already digitizing their operations before the coronavirus hit. If they accelerate these efforts now, they will likely see significant benefits in productivity, flexibility, quality, and end-customer connectivity.
To survive and thrive amid the economic fallout, companies can build their next-normal operations around a revamped approach to spending. A full suite of technology-enabled methodologies includes procurement-spend analysis and clean-sheeting, end-to-end inventory rebalancing, and capital-spend diagnostics and portfolio rationalization. Companies are also seeking to turn fixed capital costs into variable ones by leveraging “as a service” models.
The future of work, defined by the use of more automation and technology, was always coming; COVID-19 has just hastened the pace. Employees across all functions have learned how to complete tasks remotely, using digital communication and collaboration tools. In operations, changes will go further, with an accelerated decline in manual and repetitive tasks and a rise in the need for analytical and technical support. This shift will call for substantial investment in workforce engagement and training in new skills, much of it delivered using digital tools.
Successful companies will reinvent the role of operations in their enterprises, creating new value through a far greater responsiveness to their end customers—including but not limited to customer-experience innovation, mass customization, improved environmental sustainability, and more interconnected, nimble management.
Beyond the short-term impact of an economic downturn on construction demand, the crisis is also expected to hit long-term supply and demand, resulting in lasting shifts in investment patterns. Although a high level of economic uncertainty persists, research from the McKinsey Global Institute suggests that economic activity could be back on track by early 2021—if the virus is contained within the next few months and the right economic policies are enacted. However, longer-term lockdowns or other severe restrictions, even intermittent ones, could result in a severe and sustained economic downturn, with economic activity returning to 2019 levels by 2023 at the earliest.