Lawyer Monthly Magazine August 2020 Edition

17 all residents to stay home and limit social interaction. Those employers that could continue to operate have their employees work from home. In the executive and professional fields, the adjustment is met with considerable problems with access to clients’ hard files, proprietary company information that may be encrypted on company servers, and face-to-face conferencing, vital to maintaining the clients’ best interests and their loyalties. There is a reaction-time delay occasioned by working from home. An example of this is manifested by a regular client who calls a law firm and is greeted telephonically by a receptionist working remotely. That receptionist places the client on hold and contacts the legal secretary, who in turn must contact the assigned lawyer. The delays are accentuated if either the legal secretary or the lawyer do not answer the call. Additionally, files, if not downloaded into the company’s file sharing system, may be difficult to access or locate causing additional delays and frustrating the client. How can discrimination still occur when employees are working remotely? Discrimination should decline if working remotely. Face-to-face interactions can trigger more discriminatory and retaliatory actions. When one is safe at home, there are fewer occasions where discrimination could crop up. Nevertheless, discrimination can rear its ugly head when one employee is placed on a leave of absence and another is allowed to work remotely. Preferential treatment may have a discriminatory flavouring to it that can violate federal and state discrimination statutes. During this Covid-19 era of vulnerability, the employer’s ‘doing the right thing’ may be actually doing the wrong thing. For example, the employer determines to have an older worker [more than 60 years of age] work from home, yet a much younger worker [under 40 years of age] work from the office. The employer justifies its decision by stating that the older worker is in the demographic of those most severely affected by the virus; thus, as the logic follows, taking him out of the workplace benefits the older worker’s health and safety. Where discrimination could be felt is the removal from the workplace when it might be viewed as more disciplinary, hence the older worker is one foot out the door. But, let’s take the example a little further. The employer pays both the older and younger worker their set pay. In most instances, the older worker has more seniority than the younger employee. A reverse logic, just as compelling, can apply. The younger worker could transmit the virus and there is a good chance he will survive without obvious afflictions. They should be the one that stays home to safeguard the older workers. The fact that the employer designated the older worker to stay home may be fertile evidence of age discrimination. This results in a huge decision to be made by the employer, walking a tightwire of health and safety concerns, on one side, and, the other side, a potential discrimination claim, something Leon Russell would sing about, “Up on the tightwire, where one side’s ice and one is fire”. It may be a lose-lose situation for the employer. The best approach is to make sure that there are no discriminatory preferences in assigning employees to work remotely. What challenges are companies facing when their employees are working from home ? SARS-CoV-2, otherwise commonly known as Covid-19 or coronavirus, has reshaped our lives and our workplaces. Never in the history of the world has so much emphasis been brought to bear on health and safety to counter anything in the workplace as deadly as this pandemic. Never before have science and medicine joined forces using advance technologies to take on this deadly virus and limit the casualties. Some may say that the virus is nature’s way of thinning out the population as a “Malthusian catastrophe”. Religious groups may interpret this as a sign to “come together” in a Lennonesque way to end divisiveness. Whatever the interpretation, this virus, as with SARS and MERS, has awakened a collective consciousness to stop its spread. An analysis by the UN Department of Economic and Social Affairs (DESA) determined that the Covid-19 pandemic is disrupting global supply chains and international trade and could shrink the global economy by almost 1%. The implications are devastating to mid-size and small businesses that are subject to “lockdowns”, “business closures”, and “stay- at-home” orders. According to JP Morgan Chase & Co. Institute Small Business Data, 99% of America’s 28.7 million firms are small businesses with the vast majority of those firms having fewer than 20 employees. These small businesses are not well equipped to handle closures of more than 30 days, sustaining themselves, making rental and inventory payments, just to keep their “shut doors” proverbially open for business during the stay-at-home orders. Snagging a stimulus check may help, but it cannot erase the bottom-line losses. Many businesses shutter and close. Many employees are laid off and file for unemployment benefits and other forms of relief. On 19 March 2020, Governor Gavin Newson of California ordered nearly AUG 2020 | WWW.LAWYER-MONTHLY.COM FRONT COVER FEATURE - LAW OFFICES OF DALE M. FIOLA Discrimination should decline if working remotely. Face-to-face interactions can trigger more discriminatory and retaliatory actions.