Project Description

Interview with Michael Schmidt

Runtime 28:14

Michael Schmidt of Cozen O’Connor discusses the legal issues surrounding businesses during the COVID-19 pandemic, and what they need to do to prepare for the near future.

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Transcript

[0:00:00]

Robert:

Hi there. I’m Rob Tercek. I’m the CEO of Direct Education Worldwide and part of the team that created the COVID SMART Training Program for COVID-19. COVID SMART teaches the best practices for the prevention of the spread of the COVID-19 in the workplace in an effort to health employers and the staff understand the complexity of the situation that we find ourselves in. In this pandemic, we’ve launched a series of webinars.

Today, my guest on the webinar is Michael Schmidt. Mike is the Vice Chair of the Labor and Employment Practice at Cozen O’Connor in New York City. He’s a super lawyer. He’s got a tremendous track record as an attorney with a specialty in employment law. But what might be very relevant to the folks who are watching this podcast and this webinar right now is that Mike is also a prolific writer and speaker on the subject of employment. He’s created a number of very intelligent things about COVID-19 that I think are worthwhile. You can find that at his podcast, which is called Employment Law Now, and the website is employmentlawnow.com.

Well, Mike, thank you very much for joining me today. I’m happy you could do it.

Mike:

I really appreciate the opportunity. I don’t know how I follow that nice introduction, but thank you for having me.

Robert:

It’s all right. Well, your track record speaks for itself. I mean, if you go to the Cozen O’Connor website and you look at Mike’s bio, you’ll see that he’s been very successful in representing a number of firms in labor cases. But that’s not all. In our previous conversations, what I’ve discovered is that Mike has a great deal of compassion for workers and a very good understanding of the complexity of the situation that COVID-19 presents to employers, and it is complex.

Mike, let’s start out with this one basic question, which is going to be kind of the main purpose of this webinar, which is how can employers make a plan to go back to work safe, as safely as possible, under the circumstances of a pandemic?

Mike:

Well, I mean that certainly is a key question and a rather broad one, and it really gets to the heart of where we are now. I mean the difficulty and the challenge really for both employers and employees is that, as you said, this is all new. It’s new in terms of the pandemic itself, but also in terms of the statutory scheme, the government guidance and guidelines that have been issued. It feels like, I know to everybody, that we’ve been dealing with this for months if not years, but it really is only about six, seven months being in this and trying to learn all we can about employer obligations, employee obligations. So just keeping abreast of all of that has been challenging in and of itself.

But when you get to trying to create a work plan, you have to make sure that you are not only keeping up with what the current best practices are, but you also need to have a lot of flexibility because you are adapting to constantly changing best practices and guidelines, and you’re also having to adapt to the psychology that really attaches to a lot of employees’ feelings when it comes to returning to work that oftentimes go beyond what the legal and technical obligations may be.

Robert:

That’s true. It requires, as we said in the beginning, a little bit empathy, right? People are nervous. People are scared. Sometimes they’re angry or resentful. There’s a lot of emotional range in people’s response to COVID-19. And employers need to be sensitive to that.

Mike:

Yeah, no question. I mean, look, we have competing interests that aren’t always competing. On the one hand, you have businesses that need to operate, many of whom, if not all of whom, suffered a great deal as well in those opening months in particular of this pandemic. So there is an interest on the business side to be able to operate and operate safely and productively. On the other side, there are certainly interests that employees have when it comes to feeling safe, feeling healthy, and being in a workplace that can provide both to them.

Robert:

Yeah, that’s exactly right. I think the key thing there is to focus on what are the common interests, right? People do want to come back to work. They do want to maintain their jobs. They do want a safe and healthy working environment. Well, employers want that as well. Employers have been wanting to come back and restart the economy and resume the normal business operations since the beginning of the stay-at-home orders.

However, the situation is changed. And I think it’s a good point at the outset of this conversation for us to recognize that COVID-19 is a real pandemic and the SARS-CoV-2 virus is highly infectious, and it can be fatal for many people. Of course, there are those who sometimes get the disease and have no symptoms whatsoever, or they have what they call a mild case, which might not be so mild. I’ve talked to a number of people who have had it, and candidly they said it’s one of the worst sicknesses they’ve had. So it’s not always that mild even if you don’t get admitted to a hospital.

Mike:

It’s all relative.

[0:04:54]

Robert:

The main message there is that this is a real thing, and employers need to take it seriously. I bring that up because I’ve noticed that some folks that I talk to are in a kind of state shock or a state of denial. They say, “Well, we’re just waiting for this to go away, so we can go back to life as normal.” What’s your perspective on that like, Mike? I mean, if you’re going to operate a business in the foreseeable future, do you think there’s a chance that we’ll go back to life as normal?

Mike:

Well, like everything when it comes to the law, we deal with terms of art. And I’ll throw it back at you in terms of what do we mean by normal? Do I think that we will get to a point time where people will freely be going back, commuting back and forth to their officers, taking public transportation and mass transit depending on where you are? I think we will get back to that point at some point in time. The when is the big question. I also do think that there will be a lot of new normals. I think we’re seeing some of that right now as you and I are recording this over Zoom. How many people actually heard of Zoom just in February of this year?

So I think there will be a lot more contact and communications between and among groups virtually than you will with in-person meetings, although I’m a big believer that you can completely eliminate in-person interactions. But will you have the same level and number of in-person interactions? Will you have the same number of offices going with the open office floor plans as we heard so much about over the past few years before the pandemic started? So I think the answer to your question is we will get some of our old reality back, but I think, at least for the short and maybe indefinite future, there will be a lot of new in the new normal.

Robert:

That’s right. One of the reasons for that new normal, one of the reasons we’re even having this conversation candidly is that there is currently no vaccine available in the United States, and there may not be a vaccine available for quite some time. There have been a lot of excited talk and optimistic projections, but the reality when you talk to people who are experts in vaccines is that it takes quite some time to finish the clinical testing and trial to ensure the safety of those vaccines. And so that might take many more months.

And of course, there’s no medical cure for this disease, and we don’t have natural immunity to it, which means that we’re all vulnerable. That means we all have a responsibility to change our behavior, to modify our behavior, because that’s really the only way to stop the spread of this disease. And so if you’re planning to bring people back to the workplace, behavior modification is one of the key principles that you’ve got to have in your back-to-work safe plan. And that’s what we’re going to talk a little bit more about today. What are the key elements of a back-to-work safe plan from your perspective?

Mike:

Well, I think some of the things that you want to think about, number one, who is going to be returning? Are you bringing back your entire workforce, or are you going to be bringing back certain groups, certain groups that you deem more essential than others, certain group that can adapt more easily to physical modifications in the workplace? So I think that’s the first question. Who are you bringing back if it’s going to be fewer than your entire workforce? And there are certainly sub-questions that go along with that first question.

The second aspect of a return-to-work plan involved the question of what physical changes do you need to make to your workplace? Not just putting up signs, talking about masks or social distancing, but are there going to be directional arrows on the walls or on the floors? What are you going to be doing about certain common areas that are used frequently by employees? So the physical aspect, the physical change to the workplace is something that you need to be thinking about in your return-to-work plan.

Thirdly, as I said a moment ago, the psychological aspect. What are you going to be changing, if at all, with your normal corporate policies? Sure, there are certain laws and regulations and guidelines that impose legal requirements when certain employees, for example, need a reasonable accommodation. They can’t come back to work or they can come back to work without some sort of accommodation or change. But what about those individuals who don’t necessarily meet the legal requirements that will trigger some obligation under the law? What are you going to do with regard to those individuals? As I said, the psychology aspect of this is critical to keep in mind. The flexibility aspect of this is critical to keep in mind.

Just to give you one example, if you have an individual who has just a generalized fear about leaving the home and going to the workplace, maybe it’s just leaving the home that he or she hasn’t done in months. Maybe it’s the public transportation that’s concerning. Well, you might not be entitled to leave or an accommodation under federal state law, but do you as an employer want to simply play hardball with that individual and say to him or her, “Well, if you don’t return and don’t return immediately, go look for another job”? How flexible do you want to be to either help or impede the morale of your workforce?

[0:10:21]

So these are all, I think, issues that you need to be thinking about when you’re creating a plan, not something that needs to be hard and fast and just technical in nature, but one that certainly accounts for the legal obligations but also addresses physical workplace modifications as well as the psychological and morale impacts of whatever you’re going to do.

Robert:

Now let’s note that each of these is, in some ways, it’s a fuzzy topic, right? It’s not a clean-cut thing, and sometimes it’s a gray area, or as you pointed out, sometimes the actual regulations and guidelines that we get from the government are changing themselves. So this is a perilous topic, right, because companies have to have policies. They want to communicate those policies clearly, but they also have to be mindful that the landscape is evolving in real time, even as the medical understanding of this particular disease is evolving in real time too.

Mike:

There’s no question about that. I mean, the legal issues are evolving. There are so many people, right or wrong, who believe that there are a lot of politics that play into this. And we know, as we’re recording this, at the end of September, getting closer to the general election. There may be things that impact return to work and workplace health and safety and leave requirements that may change as well if we get a change in administration after the election. So you’re right. These are challenges that employers, employees and attorneys and public policymakers and everybody really are grappling with and have been since March.

Robert:

And just to add another dimension of drama to all of this, we’re recording this on September 29, 2020, and the background to this conversation is that during the past two weeks, the number of cases per day of COVID-19 that are discovered, tested in the United States has gone up by 25% in just the last two weeks. Two weeks ago, it was 30,000 cases a day, which wasn’t great, by the way. That was our best that we’ve been able to achieve with all of our measures. A week ago, the number went up to 35,000 a day. Now today, the number is over 40,000 cases a day. The numbers are going in the wrong direction in most US states right now.

All this points to what lots of experts have expressed is a real possibility with this kind of respiratory disease, which is a resurgence or a so-called second wave that might be coming as soon as October, next month, or in November, right in time for the election. So you can imagine a pretty chaotic scene in the last quarter of 2020 ahead of us. And for HR managers and those who have to do compliance and risk mitigation in corporations, this will be a perilous time. It’s going to require a lot of attention and a lot of care.

Mike:

Well, look, there’s no question that the last quarter of 2020 is going to be significant to watch. I mean, among the other issues that you talked about, you have back to school as we went into September. So you’re having younger children, teachers, administrators starting to congregate inside in schools around the country and in big cities certainly. You’re having weather changes in many parts of the country where you’re not able to congregate as often and for as long outside.

So whether it’s for social reasons, restaurants or otherwise, more people are starting to congregate inside in the cold or inclement weather. You’re also, and it’s not to say we don’t have holidays throughout the entire year, but September has seen some holidays for certain portions of the population. We will continue that as we go through October when we have Halloween, which tends to be a very interactive holiday and then getting into Thanksgiving and Christmas and Hanukkah, all holidays where not only do you have people inside because of the weather, but you have people gathering in large numbers. So to your point, I think the fourth quarter of 2020, for a lot of reasons, as we get to the New Year is really going to be telling us what the challenges are and how much we have to do to try to confront them.

Robert:

So for employers, they have the responsibility of monitoring this ever-changing landscape, and at the same time they have a second set of obligations, which is to communicate clearly to their employees, both the obligations that the employees have and also the reasonable expectations that those employees might have. And the third part of that is training. No matter what your plans are for returning to work, in order to return to work stately, you’ve got to explain to employees what’s changed, what’s new. What’s different about the workplace? What’s different about the work flow?  Is there a new equipment that’s been issued to employees?

All of this requires training, and so back-to-work safe plans always have a component of training. And from our perspective at COVID SMART, we feel that training is the most cost-effective measure that any company can do because it’s the best preventative thing if you train people on the right behaviors to prevent the disease. And it’s a lot less expensive on a per user basis than say testing, swab testing or antigen testing, blood testing, and so forth.

Mike, let’s talk a little bit about training programs because there are some specific things that should be included in a training program. Can you talk a little bit about that?

[0:15:31]

Mike:

Sure. And I just want to piggyback on what you decide because it’s such a critical point, Robert. I mean, the kinds of training that you do, your organization does, and certainly the kinds of training that we do from the legal side at our firm, there’s a real critical component to that and that is that the people who are being trained. I say very often, whether I’m doing a webinar or a podcast or whatever it is, when you’re speaking to C-suite executives or senior management of companies, maybe you’re talking with human resources or benefits professionals, the thing you really have to keep in mind is that the people who also need this training are the folks who are in the trenches with the employees on a day-to-day basis, the managers and the supervisors.

It’s one thing, as I said, for the higher executives and HR people to understand these issues and understand the finer training points, but those who are interacting with the rank and file employees on a day-to-day basis, they need to know the dos and don’ts. If somebody comes to you asking for an accommodation, they need to know what can and can’t be said, if somebody is raising an issue with wearing a mask or you’re seeing a group of people who are not socially distant.

So this training aspect, before you even start getting into the contents and the substance, it’s real critical, as you said, Robert, that the organization as a whole are getting trained on these issues.

Robert:

Yeah, that’s exactly right. We believe the best way to do it is to train everybody in the company on a common baseline of behaviors. And then, of course, for the experts in the HR department, other departments, they might want to go deeper and they’ll need that expertise, of course, but it’s really important to communicate to everybody what the new expectations are. In fact, my view, Mike, is it’s very hard to enforce a behavior policy in a company if you haven’t done training, right, because if the company doesn’t have a solid basis for enforcing it in any way.

So for instance, you see plenty of companies handing out masks. Back in April, they weren’t giving out masks to grocery store workers, but then suddenly in May they started doing it. But they didn’t train those workers on how to wear the masks properly. And so often, if you go to the grocery store, you’ll see people with the masks down here or down here or down here. Hey, folks, they’re not solving any problems with that. That is not actually solving the problem.

Mike:

Their neck is safe at least, but they’re not wearing it properly. I mean, look, I also say quite frequently, I analogize this to raising children to a large extent. If you think that you can start imposing discipline or talking about rules and judgment when your children first become teenagers, you’re missing the boat. It really starts early on when you’re trying to instill some values, instill some practices and customs with your kids early on. It’s really no different when you’re dealing with corporate America. When you have developed a culture of communication, of open communication, a culture of training, a culture of setting expectations and having a free-flowing discussion with your workforce, something like this happens, it’s going to be a lot easier to continue that culture, as you said, as opposed to never having done this, and now all of a sudden July 2020 comes, and we’re scrambling to figure out why are people not following these guidelines, or why our employees not understanding how to wear a mask.

Robert:

And here’s a place where it’s very easy for an employer to inadvertently fall foul of the law. They can make a mistake. For instance, a lot of folks may be unaware that there’s different rules and different regulations across the United States. There isn’t one set of rules or guidelines for that can be enforced. We probably don’t have time to get into it, but there are a number of US states, particularly in New England, a few in the Midwest, Chicago, Michigan, Virginia, Kentucky, and along the West Coast, California, Oregon, and Washington, that oblige employers to do some sort of training, and they recommend it strongly that you do that training before you return to the workplace. But, of course, each of those sets of rules and regulations vary.

So now imagine a corporation that’s got employees all over the country. In some jurisdictions, they have these requirements. Other jurisdictions, they don’t. And no matter where they are, the rules will vary by jurisdiction. Mike, what do you do when you have a client that’s trying to bring people back to work and they’re in a multijurisdictional situation?

 

[0:19:55]

Mike:

Well, you hit on such a key challenge for employment law generally. It used to be 10, 15, 20 years ago, you did have very much a federal scheme when it came to employment law. But now the last ten years and certainly last five years, and we can spend another hour talking about why this is the case, but the states and the local governments are really getting into the act when it comes to employment law, developing their own requirements and their own statutory schemes.

So you’ve hit it on the head. For those employers who are multijurisdictional, you really need to have a good understanding as to what the requirements are in each state, and then make a decision how you are going to implement those differences if there are any. For example, perhaps your organization is going to have state-by-state addendums to your manuals or handbooks or policy trainings. There are also some organizations that say, hey, let’s look at all of them that we may be subject to, figure out which is the strictest, and then we will implement the strictest policy and requirements across the board to all of our employees.

This is no different than when we’ve seen in the last couple of years in the midst of the Me Too movement with the sexual harassment training being a real big issue around the country for employers. And many states not only had harassment training requirements, but they differed in terms of the content, the length, in person, virtual. So it’s the same kind of issue now that you’re dealing with training perhaps and return to work and COVID-19 issues. You really have an extra layer of challenge if you are a multijurisdictional company.

Robert:

And you can imagine the complexity of that because also the information is changing in real time, right? So every single week.

Mike:

That’s right.

Robert:

We’ve noticed this just with the CDC, the Centers for Disease Control and Prevention. One week they’ll post a side of guidelines, and then a week later they’ll take them down, and sometimes it’s actually faster than that. So yeah, that presents a certain set of issues for employers.

One thing I’ve noticed is that on a county basis in some parts — I live in California and here, in some of the counties, they’ve issued a set of guidelines and training, but it’s only aimed at one person in the organization. So let’s say, that’s the safety manager, or maybe it’s just the manager of the business if it’s a small business. Now what people might not realize is that confers extra responsibility on the employer because now suddenly the government, the local government has kind of shifted the responsibility for communicating to the employees onto that manager, onto that one person who takes the course. Again, I see that as a weakness because I think if you train everybody on a common set of information, they’ve all got it and you can prove they’ve all been trained versus hoping that one person in your organization communicated to everybody else.

Mike:

Well, that sounds like the game of telephone. You’re shifting the burden to the employer to train that one site manager or designated individual. Are you confident that that individual is capable to then communicate in the right way and all of the substance of that training to the different groups of people below him or her?

Robert:

It’s an important responsibility, and I candidly think that in the absence of some kind of central unified set of guidelines, companies really need to take on some advice and really get a professional opinion on how best to proceed, especially if you’re in multiple jurisdictions. But even so, you’re just in a single state. It can vary from county to county.

Mike:

Yeah, it’s a tough thing to deal with. I mean, as much as we love to have a centralized book on how to proceed or a roadmap, you do have different states that have different types of industry, which will impact, I think, certain return to work and related best practices. Even companies within the same industry have different cultures and different types of workforces that require some differences company to company.

So I think it really is about, as you said, understanding what the best practices and obligations are in each jurisdiction on which you’re operating and then develop a plan with some outside counsel or experts on how to implement that in the best way.

Robert:

Now let’s talk about the role of OSHA, Occupational Safety and Health. In the beginning, in the early days, it seemed to me, personal opinion, they were missing in action on the very early days of this outbreak. Others might disagree with that characterization. But when I say that, what I mean was everyone was looking for what are the measures we can put in place to protect workers? And it seemed quite natural to look to OSHA for that kind of guidance. And eventually, they did deliver it. Eventually, they did come out with a set of guidelines. But my understanding, Mike, is that those are not obligatory. They’re merely guidelines. Is that correct?

Mike:

They’re not obligatory, and they’re also not far-reaching. They have not come out with a standard, a COVID-19 set of rules, to your point, and that has frustrated a lot of people for the reason that you said, that people, I think, naturally turn to ocean on these health and safety issues to give us some roadmap and some guidance. Again, I think there are a few reasons why they have been reluctant to do that. So what we have instead is sort of a patchwork of standards, whether it’s specific PPE standards or other types of guidelines for such things as cloth-based coverings. So it’s really much more of a patchwork as opposed to a single standard, here’s what employers need to do.

[0:25:30]

The other thing to keep in mind is OSHA has forever had The General Duty Clause. And I think in large measure, they and employers are really falling back on that catch-all General Duty Clause. What does that mean? It means that employers have a general duty to create and maintain a workplace that is free from recognized hazards that might cause death or serious physical harm.

So I think OSHA has taken the position that we still are perhaps in a temporary situation however serious it may be. And while we may come up with guidelines for specific aspects of it like PPE, we’re going to rely on The General Duty Close, which requires employers, I think, to assess their particular workplace, assess the hazards and risks that are associated with the roles and jobs and duties in that workplace, and then implement and again train employees based on whatever unique aspects exist in those workplaces with those roles rather than having or trying to have a one-size-fits-all national standard issued by OSHA.

Robert:

And maybe given that the United States is a collection of very different states with very different geographies and, frankly, different political philosophies in each of the states, it might be an impossible ask, right, to ask the federal government to issue this guideline. And what we’re probably talking about, we seem to be skirting around this topic, that on the one hand, the CDC hasn’t been able to come out with consistent guidance, and on the other hand, OSHA is saying, you’ve got this general duty. It wouldn’t be unreasonable for employers to say, okay, we understand we got the general duty. Can you give us the general guidance? And that, unfortunately, is not forthcoming.

I happen to live in California where we love issuing regulations, and in the absence of a federal regulation, there’s always Cal/OSHA who loves to step up and fill the vacuum, right? They abhor a vacuum, so they’re going to fill it with their own set of regulations. Now you can imagine the stress that this puts on employers because they’re having to chase after all of that evolving landscape.

Okay, let me shift the conversation a little bit then. We’ve talked about the regulatory bodies. We’ve talked about the jurisdictions. We’ve talked about this involving set of guidelines that you need to keep an eye on and probably refer to professional advice from a trusted law firm so that you get the good information when it’s timely. Let’s talk a little bit now about reasonable expectations. You brought this up in the beginning, and I think it’s really important for us to spend at least a couple of minutes that remain talking about what is a reasonable set of expectations that an employee can have of their employer when they return to work, when they’re asked to come back to the workplace?

Mike:

I think there are two aspects of that. I think the first expectation that employees probably should be able to have is that employers have given thought to the kinds of issues that we’re talking about and then have gone beyond giving it thought and have started to put pen to paper and again beyond just putting something in a written policy, actually create a plan to implement that policy, which is hopefully going to be based on best practices and as much guidance as they can from the federal and state government authorities. So an employee expecting to come back to work, having their employer have created a plan to make the workplace, you’re not going to eliminate each and every possible hazard or risk out there, but that they’ve at least acted in good faith to try to come up with a plan that they have implemented and then communicated to the employees.

I think the second aspect of the expectations is that if there are concerns that employees have, there’s somebody that they can go to. I think that goes back to what employers should be doing when they’re creating their back-to-work plan and that is to designate an individual or a team of individuals to be recipients of concerns and complaints that are being raised. There’s no question that there may be times where employers may be overwhelmed by the number of concerns, legitimate and non-legitimate.

But I think where we are now seven months into this, which is still fairly early, I think, the employers probably want to air on the side of the communication aspect that I pointed out before that’s so important for so many reasons, and make sure employees feel that they have somebody that they can go to that’s been designated from the corporate standpoint to bring up concerns, comments, questions. It goes back to employers being able to do something about something they know, and it goes to the employee psychology and the morale that they feel their employers care about the workplace they’re returning to.

[0:30:22]

Robert:

This is key too because what we talked about earlier, the rapidly changing nature of the information. As medical science gathers more information about SARS-CoV-2, the virus, and COVID-19, the disease, they’re going to start to inform organizations like the Centers for Disease Control and the World Health Organization who will continue to issue more public health of guidelines. Those are going to filter their way down to your local workplace. And so the employees will need to be informed of those evolving recommendations. So having those open channels of communication and a clear and consistent way to communicate to employees even before they return to the workplace, we think these are very important points.

Now, Mike, let me ask you a different question, kind of the other side of that question. What’s a reasonable expectation that an employer can have of their employees when they ask them to come back to the workplace during the pandemic?

Mike:

Sure, great question. I mean, I think, employers should start with the mindset that we have a very intelligent workforce in 2020. I think employees more so than 10, 15 years ago have access to a lot of information. They have access to the Internet. They have friends and family members and neighbors who are lawyers. So I just think that we are, for a lot of reasons, dealing with a much smarter workforce than used to be the case without painting too much of a broad stroke. So employers should start with the mindset that employees are smarter in terms of what information is out there, what their rights are, what they can rightfully expect as part of a return to work and a continuation of the work relationship.

But to your question specifically, what can employers expect from employees? I think they should be able to expect that employees are following the rules and the plans that they are spending a lot of time and effort putting into place. I think they can and should expect that employees will continue to be as productive as they possibly can. Remember, it’s not just the employees who are hurting in terms of they’ve either been furloughed, maybe they’ve been out of work, but a lot of businesses have been closed. And even for those who have been open, the streams and sources of revenue haven’t necessarily been what they were pre-pandemic. So they need to get operations going, and they need their key employees to help assist with those operations to get back going again.

So I think they should have an expectation that employees will follow the plans, will continue to work and be productive, but will also raise concerns and legitimate issues in good faith when they see something that isn’t right, or they see something that is concerning to them because, I think, it’s fair to say most employers want to do the right thing and want to correct things that are not right, and they can’t do that if they don’t know about it in the first instance.

Robert:

That’s a good point. Now what role — tell me about the relationship between the unions and employers. I realized that the number of people who belong to unions in the United States has been in the decline in the recent decades, but they do still play an important role. Principally, in the early days in particular, unions were there to establish safe work practices and safe workplaces. Do you see that happening today? I mean, I live in Los Angeles where the film production unions have actually just reached a good accommodation with the movie studios. They seem to have done that in a very constructive way where both parties sat down and they said, look, the whole goal here is to prevent an outbreak. How can we return to work safely? Studios need to produce shows because they’re running out of shows and they managed to find that. Is that your observation as well? Have the unions been able to play a constructive role in bringing people back?

Mike:

I think so, and I think many people would echo what you said in that unions continue to play an important role for a large portion of the workforce still in 2020. And I think, like any negotiation, if you go into it not with the notion that there’s a zero-sum game that has to be achieved but that both sides have an interest and both sides at the end of an issue negotiation can win, however we define win, then I think everybody’s head is in the right place. I think employers and unions alike do have common interests. They don’t want the spread of the virus to continue or to escalate. They have common interests in wanting employees to be back at work and be productive when they come back to work. How they arrive in the weeds of specific issues, that’s for negotiations and employers and unions that, I think, adopt that right mindset when it comes to negotiation, I think, will succeed in doing that.

[0:35:15]

Robert:

So in fact, this isn’t a one-way or a two-way exchange between workers and the employers. There’s actually many other players involved, and employers need to be aware of that. We talked about federal agencies and federal departments. We talked about state and county officials, health care departments, and so forth. Now we’re talking a little bit about labor unions. So the real landscape we’re talking about is complex, and it’s, of course, going to vary by industry as well.

Well, this was a great conversation. I’ve enjoyed chatting with you. I want to make sure that we don’t go too far or too long, but I also want to make so that you had a chance to express everything you prepared today, Mike. So is there any question I haven’t asked you? because I’d love to get that.

Mike:

No. I appreciate again you having me on, and I’d love to continue the discussion another time. Look, I think it’s difficult, whether you have 45 minutes or whether you have two hours, to hit on every issue and answer every question that there is out there, even assuming you know all the questions. But I think if you leave something like this with the right takeaway, I think that’ll go a long way toward answering whatever questions come up after this. If employers go with the right mindset as to what interests they have to operate their business while at the same time what to expect from employees in terms of their needs and their psychology, I think if employees go into the return-to-work scenario not only thinking about what their needs are and what their concerns are but understanding what the needs and concerns of the employers are, I think that will help answer questions for both sides. And at the end of the day, we’ll bring employees back and allow businesses to operate productively again and hopefully stave off having to go through all of this in the same ways we did earlier this year.

Robert:

Well, Mike, thank you very much for your time.

My guest today has been Michael Schmidt. He’s the Vice Chair of the Labor Employment Department at Cozen O’Connor. You can learn more about him at www.cozen.com. And don’t miss his podcast which is Employment Law Now at employmentlawnow.com.

I’m Robert Tercek. I’m the CEO of Direct Education, and we are the producers of the program COVID SMART. COVID SMART is occupational training for the workforce to bring them back as safely as possible under the circumstances. And you can find out more about that at gotoworksmart.com.

Thank you all very much for joining us today.

Mike:

Thanks, Robert.

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