Home Posts tagged Reopening
Cover Story

The Next Stage

The governor calls the last phase of his reopening plan the ‘new normal.’ It’s a phrase people are already tired of, even if they use it themselves. Life in the new normal isn’t like it was during the pandemic, and it isn’t like it was in 2019, either. As the stories below reveal, it’s a different time — a time everyone has been waiting for since workers packed up their things and headed home to work in March 2020. It’s a time of opportunity and a chance to recover some of what’s been lost. But there are still a number of challenges and questions to be answered, involving everything from workforce issues to when business travel will resume, to just how much pent-up demand there is for products and services.

Hall of Fame

Shrine is poised to rebound from a season of hard losses

Bradley International Airport

Facility gains altitude after pandemic-induced declines

White Lion Brewing

After a year to forget, this Springfield label is ready to roar

The Starting Gate at GreatHorse

Reopening timeline prompts excitement, but also trepidation

The Sheraton Springfield

Downtown mainstay sees new signs of life, anticipates many more

The Clark Art Institute

This Berkshires staple has exhibited patience and flexibility

The Federal Restaurant Group

At these eateries, guests will determine pace of reopening

 

 

Features

Downtown Mainstay Sees New Signs of Life, Anticipates Many More

Stacey Gravanis

Stacey Gravanis says the phones starting ringing seemingly within minutes after the governor announced the new timetable for the final stage of his reopening plan.

 

Stacey Gravanis doesn’t particularly like that phrase ‘new normal’ (and she’s certainly not alone in that opinion). She prefers ‘return to life’ to describe what’s happening at her business, the Sheraton Springfield, and the broad hospitality sector.

And that choice of phrase certainly speaks volumes about what’s been happening — or not happening, as the case may be — in the hotel industry over the past 14 months. In short, there haven’t been many signs of life, at least life as these facilities knew it before COVID-19.

“The bottom just fell out,” she said, for all categories of business for the hotel — corporate and leisure stays, events, conventions, visitors to the casino, weddings, even the business from the military and airlines (flight crews flying into Bradley staying overnight came to a screeching halt in mid-March 2020). And it would be months before any of that came back, and then it was mostly the airline and military business, said Gravanis.

“Our customers are reacting. I have said there’s not going to be this switch that flips, and the business is just going to come back. But it felt like that day, someone did flip a switch because the phones were going crazy. What we budgeted for June … we already have it on the books.”

“When it first started, we were tracking the loss on a weekly basis; we had a spread sheet that we would review,” she recalled. “And then we just stopped reviewing it, because everything, everything, canceled. Reviewing it was pointless; we were just focused on how to rebuild.”

That rebuilding process started over the last two quarters of 2020, she said, adding that, by May, occupancy reached 40%, 10% above what she actually budgeted, said Gravanis, who then provided needed perspective by noting that, in a ‘normal’ May, buffeted by college graduations and other events, occupancy reaches 90%.

She expects the numbers to continue climbing, and while she expected the timeline for fully reopening to be accelerated, and was preparing for that eventuality, the response from the public has been more immediate and more pronounced than she anticipated.

“Our customers are reacting,” she told BusinessWest. “I have said there’s not going to be this switch that flips, and the business is just going to come back. But it felt like that day, someone did flip a switch because the phones were going crazy. What we budgeted for June … we already have it on the books.”

On the other end of those phone calls have been clients across a broad spectrum, including everything from leisure travelers with newfound confidence to book rooms for this summer to those planning to participate in a recently announced three-on-three basketball tournament, to brides looking to bring more guests to weddings that were booked for this June and July.

“Some wanted to double their numbers,” she recalled. “We had a wedding for 175 people that’s now 250 people, booked for the end of June.”

The hotel can handle such developments, she said, but it requires staffing up, which is one of the question marks and challenges moving forward, said Gravanis, adding that another concerns just when — and to what extent — corporate travel, a large and important part of the portfolio at the Sheraton, returns.

“We’re seeing a slow, slow return of business travel,” she explained, adding that corporate gatherings are critical to the hotel’s success, accounting for perhaps 40% of overall group/convention business. “We have heard some encouraging news from some of our tower tenants [Monarch Place] that they will be starting to return in June. We knew it would be the last to come back.”

But will it return to pre-COVID levels?

“I feel that it will,” she said, offering a few questions, the answers to which are on the minds of everyone who relies on business travel. “Who’s not sick of being behind a screen? And are those Zoom meetings as productive as bringing everyone together and putting them in the same room?”

As for staffing, she said the Sheraton has benefited greatly from corporate direction to keep key personnel amid large-scale furloughs and layoffs, on the theory that it would be difficult to replace them. That theory certainly has validity, she said, and keeping those personnel has helped the hotel as it returns to life.

Still, the Sheraton, like most businesses in this sector, is struggling to find enough help to handle the new waves of business now arriving.

“You may have 25% of your interviews actually show up,” she said with a noticeable amount of frustration in her voice — because she handles the interviews. “The hiring crisis hasn’t really hurt us yet because we have such talented managers, and every employee who works for us can work in multiple disciplines — they’re all cross-trained; our front-desk people can also drive a shuttle and jump into laundry. That said, we’re struggling just like everyone else.”

She remains optimistic, though, that these struggles won’t interfere with this downtown landmark’s long-awaited return to life.

 

—George O’Brien

Features

The Basketball Hall of Fame

 

John Doleva

John Doleva stands in the new Kobe Bryant exhibit at the Basketball Hall of Fame, which is drawing considerable attention and is now one of many reasons for optimism at the shrine.

 

John Doleva says it was probably within minutes after Vanessa Bryant, widow of the NBA star and entrepreneur Kobe Bryant, posted an Instagram photo of her in the new exhibit at the Basketball Hall of Fame dedicated to Kobe — a photo that has garnered 17 million ‘likes’ — when the phone started ringing.

On the other end were people — from this region, but also across the country — who wanted to know more about the exhibit and how long it would be running.

“The phones been ringing off the hook,” said Doleva, the long-time president and CEO of the Hall. “We’ve had calls from all across the country, but especially from California, with people saying, ‘I want to come see it; don’t take it down.’”

Vanessa Bryant’s Instagram post, followed soon thereafter by an article on her visit to the Hall in Us Weekly magazine and the response to both, is one of many things going right for the Hall of Fame a year and change after everything — as in everything — started going wrong.

Indeed, at the start of 2020, the year was shaping up as potentially the best in the Hall’s history. A star-studded class, headlined by Bryant, Tim Duncan, and Kevin Garnett, was going to be inducted that September. Meanwhile, a series of major additions and renovations to the Hall were being completed, prompting expectations for a surge in visitation. A commemorative coin was slated to be launched, one that was projected to become a major fundraiser for the shrine. And plans were being finalized for a massive three-on-three basketball tournament, with the Hall as a major player — and drawing card for participating teams.

And then … it all went away.

The induction ceremonies, a major source of funding for the Hall, were pushed back several times, and eventually to last month, and moved to Mohegan Sun in Connecticut. The commemorative coin was scrapped, and the three-on-three tournament, dubbed Hooplandia, was scrubbed as well.

“The phones been ringing off the hook. We’ve had calls from all across the country, but especially from California, with people saying, ‘I want to come see it; don’t take it down.’”

As for the Hall’s renovation, COVID-19 actually provided an opportunity to slow down the pace of work and add two new attractions — the Kobe Bryant exhibit and another exhibit that allows visitors to virtually join the set with TNT’s NBA broadcast team, which includes Charles Barkley and Shaquille O’Neal, and read a few highlights.

In recent weeks, visitation to this new, more modern, more immersive Hall has been steadily increasing, said Doleva, who expects that pattern to continue, and for a number of reasons, ranging from Vanessa Bryant’s Instagram post to the fact that many people who might otherwise be heading to the Cape or Martha’s Vineyard this summer will be coming to Western Mass. for day trips because they can’t book rooms or cottages at those destinations.

“Our traffic right now is ahead of pre-pandemic, 2019 numbers, and our pre-bookings for upcoming weekends are excellent,” he noted. “On a normal Saturday in May, we would get 300 to 400 people; last Saturday (May 22), we had 660. School is not out yet, and yet we’re still seeing a few hundred on a weekday.

“Our projections are that this will be the best summer we’ve ever had; we’re going to be aggressive in our promotion of visitation — we didn’t invest $21 million to hope and pray people come,” he went on, adding that he’s expecting 100,000 visitors to visit this summer, a 30% to 40% increase over what has been typical over the years.

And the governor’s moving of the reopening date from Aug. 1 to May 29 will certainly help in this regard, he said, adding that June and especially July are key months for the shrine.

“We were anxiously awaiting the green flag — and now we’re ready to run,” he told BusinessWest, noting that, while some businesses were not fully ready for May 29, the Hall was, and especially grateful for gaining nine critical weeks.

Overall, Doleva believes 2021 will, in many respects, be the year that 2020 wasn’t for the Hall. There will actually be two induction ceremonies, with the class of 2021, headlined by former Celtics Paul Pearce and Bill Russell (to be honored as the first black coach in the NBA), to be celebrated in September at the MassMutual Center, as well as a return of collegiate basketball tournaments that benefit the Hall. Meanwhile, Doleva is also projecting a strong surge in corporate events and outings at the Hall as the business world gradually returns to something approaching normal.

He said the Hall boasts a number of amenities, including a theater with seating for several hundred and Center Court, which can seat more than 400 for a sit-down dinner and now includes a 14-by-40-foot video screen.

“We’re getting a lot of interest, a lot of calls,” he said, noting that a few banquet facilities closed due to COVID, and the Hall stands to benefit whenever the business community and other constituencies are ready and willing to gather in large numbers again.

Getting back to those calls from California and the Kobe Bryant exhibit, Doleva said the typical lifespan for such a display is at least three to five years, and perhaps longer. He joked that those at the Hall are telling those callers, ‘why don’t you buy your tickets today, and we’ll hold it until you come.’”

Enthusiasm for that exhibit is just one of many reasons why those at the Hall of Fame believe they can fully rebound from a year that saw a number of hard losses.

 

—George O’Brien

Features

Reopening Timeline Prompts Excitement, but Also Trepidation

Greathorse GM Bryan Smithwick

Greathorse GM Bryan Smithwick is optimistic about the last two quarters of 2021, but, like all those in the hospitality sector, he has real concerns about the process of staffing up.

Bryan Smithwick believes he’s like most business owners and managers in the broad hospitality sector when he says that the news of the accelerated timeline for fully reopening the state was greeted with a mix of excitement, anticipation, and trepidation.

The first two elements are a function of just how bad 2020 was — we’ll get to that in a minute — while the third is obviously a reflection of a labor market the likes of which even those businesses owners with several decades of experience have never seen before.

“It’s like … great, we got the green light to go ahead and reopen and start hosting large audiences,” said Smithwick, general manager of the Starting Gate at GreatHorse, the high-end private golf club in Hampden. “But the labor market is so challenging right now. It’s awesome that the deadline was moved up, and moved up so significantly, but I think businesses thought they would have more time to plan, more time to really get their employees re-engaged with work — those employees who had been laid off — and even find new employees.

“The time frame was greatly reduced,” he went on. “And in the post-COVID world — I think I can say we’re in the post-COVID world now — that’s the greatest challenge we face, finding employees and getting geared up. We’re going to execute well over 80 weddings in 2021, and finding staff that can meet the business levels and get prepared is something we’re really struggling with right now.”

Looking back on 2020, Smithwick said it was certainly a great year for the golf business.

Indeed, while play was up at the public and semi-public courses, the private clubs benefited as well, with individuals and families deciding that, if they couldn’t travel, they should invest in a country-club membership.

That was certainly true at GreatHorse, which opened in 2015.

“For people who had been contemplating private-club membership, COVID really was the stimulus that made people take a hard look at all that private clubs have to offer,” he noted. “The safe-haven effect, and the relevance of clubs, was certainly strengthened during that emotional time, and we saw tremendous growth in our membership at GreatHorse, and we’ve continued to see that into the first and second quarters of 2021; we’ve really grown that side of our business.”

Unfortunately, the same could not be said of the banquet and event side of the ledger, one that has become an all-important part of the portfolio at the club.

“It’s awesome that the deadline was moved up, and moved up so significantly, but I think businesses thought they would have more time to plan, more time to really get their employees re-engaged with work — those employees who had been laid off — and even find new employees.”

Pretty much every event that was on the books after March 2020 was canceled or, in the case of weddings, pushed back a year or two, said Smithwick, adding that it was a year of “emotional conversations” with clients (and especially brides), pivoting, and trying to make the most of an extremely difficult time.

“We were only able to execute about 15% of the weddings that we had planned in 2020,” he told BusinessWest. “We were able to salvage the overwhelming majority of our weddings and shift them into 2021 and some even into 2022, but, overall, it was a lost year for revenue on that side of the business.”

While the outlook for this year is gradually improving, the shifting of those weddings slated for 2020 consumed a number of the dates in 2021 — and some in 2022 — limiting the overall revenue potential of this year and next, said Smithwick, adding quickly that projections are for a solid balance of the year — even if most weddings will not increase in size in proportion with the loosening of COVID restrictions — and an especially strong fourth quarter, with the anticipated return of holiday parties.

“It’s nice to know that we will have an opportunity this year to secure some December revenue,” he noted. “Without holiday parties, December can really be a soft month.”

But while the general outlook is positive, some question marks remain concerning the ‘new normal’ and challenges when it comes to making a full recovery, especially in regard to staffing.

Returning to that subject, and speaking for everyone who shares his title or something approximating it, Smithwick repeatedly stressed that finding and retaining good help is the most pressing issue facing those in this sector, and one that has made this transition into the new normal exciting but also daunting on several levels.

Taking a deep dive into the matter, he said a number of factors influence this problem. That list includes veterans of this industry (servers, bartenders, even managers) simply leaving it for something else during a very difficult 2020, generous unemployment benefits that have made sitting on the sidelines even when jobs are available an attractive proposition, and difficulty with bringing on interns from overseas, something GreatHorse had done with great success prior to COVID.

“Traditionally, we would work with J1 students from South Africa to England,” he explained, referring to the visa program that offers cultural and exchange opportunities in this country through initiatives overseen by the U.S. State Department. “With COVID being a world pandemic, we have not had access to the students looking to do internships in the hospitality sector; we’re really hit a roadblock with every avenue we’ve chosen, from job fairs to working with local hospitality schools to putting referral bonuses in place for existing employees.

“It’s tough, really tough. I’m not going to lie — it’s the most suppressed labor market for hospitality that I’ve seen in my career,” Smithwick went on. “Our staffing levels are not where they need to be; we’re just not having much success finding servers and bartenders, which is the key for our business model here.”

That’s why an otherwise joyous and exciting time is also being met with a dose of trepidation on the side.

 

—George O’Brien

Features

At These Eateries, Guests Will Determine Pace of Reopening

Ralph Santaniello

Ralph Santaniello says his customers, and not the governor, will determine how quickly and how profoundly he increases capacity at the venues within the Federal Restaurant Group.

Ralph Santaniello says he’s read the language contained in Gov. Charlie Baker’s decision to bring the state into the final stage of his reopening plan at least a dozen times.

And each time, he came away with the conclusion that the phrase ‘no restrictions’ means … well, no restrictions.

“That means no more mask requirements, no more tables being six feet apart, no barriers, no restrictions on capacity,” said Santaniello, director of Operations for the Federal Restaurant Group, which includes the Federal in Agawam, Vinted in West Hartford, and Posto in Longmeadow.

But just because it’s there in black and white doesn’t mean this restaurant group has to go as far and especially as fast (the date for full reopening was moved from Aug. 1 to May 29, as everyone knows by now) as the governor says it can.

And it won’t.

Indeed, Santaniello — several times, in fact — said it will be customers, the buying public, and not the governor who ultimately determines the pace at which these restaurants work their way back to where they were in the winter of 2020, before COVID-19 reached Western Mass.

“We’re not just going to turn on the faucet right away and have everything back to normal day one — the guests are going to decide things,” he noted. “What we’ll probably do is eliminate the barriers and slowly introduce more seating so the guests get comfortable. We’ll start to ramp up and ease our way back and see how things go.”

For example, while the requirement that tables be six feet apart has been lifted, the three restaurants in the group won’t immediately turn back the clock on such spacing, and will likely start with tables four feet apart and gradually reduce that number, again, with the pace of change and distance set by the public and its perceived comfort level with the surroundings.

“We’re not just going to turn on the faucet right away and have everything back to normal day one — the guests are going to decide things.”

Overall, as his group ramps up in the wake of the reopening announcement, Santaniello is projecting a solid balance to 2021, although projecting numbers is somewhat difficult. He noted, for example, that last summer was very strong for the three restaurants, all of which had outdoor dining, and one reason was because far fewer people were able to vacation out of the area. This summer, more might be able to, but most spots on the Cape and elsewhere are sold out.

“If spring is any indication, our reservations are up — they’re up to even 2019 levels,” he said, adding that the calls for reservations and booking events started picking up several weeks ago as the number of COVID cases started declining and the number of people vaccinated kept increasing.

Santaniello is projecting a strong fourth quarter, which is traditionally the most important three months for most restaurants, and especially the one he was sitting in while talking with BusinessWest, the Federal in Agawam, located in an historic home built just before the Civil War.

It has become a popular gathering spot year-round, he said, but business peaks during the holidays, and he is expecting a hard run on dates in December for holiday parties, especially after most companies, and families, went without last year.

But the next several months will feature a number of challenges, said Santaniello, noting rising food prices and especially the ongoing labor shortages as the two most pressing items on the list. The latter is the one keeping most restaurateurs up at night, he noted, adding quickly that he’s certainly in that group counting sheep.

“Last year, I had employees I was trying to keep on the payroll and no customers; this year, it feels like I have a ton of customers and no employees,” he said. “A good percentage of our employees have not come back yet, or some have left the industry; some are not ready to come to work for any of a number of reasons. Everyone has to do what’s right for them.”

He noted that the problem will actually limit the amount of business he can take on for the foreseeable future.

“Last year, I had employees I was trying to keep on the payroll and no customers; this year, it feels like I have a ton of customers and no employees.”

Indeed, while the Federal has historically been open six nights a week (Sundays are reserved for events), it will go down to five and possibly to four (Wednesday through Saturday, with events on Sunday), in large part due to the staffing situation.

Overall, though, the outlook for 2021 is obviously much better than 2020, he said, adding that he’s optimistic that the employment situation will eventually stabilize, probably by the fall, and overall business, by most projections, will continue to improve as customers feel more comfortable with being indoors and around other people.

“I think we’re going to have a great summer, and it’s going to be an even better fourth quarter,” Santaniello said. “The second quarter is shaping out great, the third quarter will be good, and the fourth quarter and the holiday season will be really, really good.”

 

—George O’Brien

Opinion

Opinion

 

Going back a full year now, when Gov. Charlie Baker first started reopening this state in the wake of the COVID-19 pandemic, he has taken a slow (some would say too slow) and cautious (many would say overly cautious) approach to the process.

And this pattern continues with his recent announcement that restrictions on many types of gatherings and businesses will be eased later this month, and that they will be lifted completely on Aug. 1.

From a glass-half-full perspective, this is the news all those in the business community have been waiting for — movement back to something approaching normal when it comes to where people can go and what they can do. In the class-half-empty category, ‘normal’ is coming to other states much sooner.

Indeed, many states (Florida and Texas have led the way) have been fully open for some time now. And in the Northeast, states like New Hampshire have lifted most, if not all, restrictions and are fully open for business. Even New York, which has been as slow and cautious as Massachusetts, will fully reopen for business on July 1.

While, in many respects, cautious is good, we hope the governor will look at the data and the trends when it cases to cases, hospitalizations, and vaccinations, and move up his timetable for fully reopening Massachusetts. For many businesses, especially those in the tourism and hospitality sector, summer is their time to shine. Losing another full month or more when other neighboring states are wide open is just one more heavy burden to bear.

Meanwhile, for restaurants, yes, the announced easing of restrictions will help, but they are still handicapped by the rules in place at a time when many are still struggling to keep the doors open.

But … getting back to the glass being half-full, businesses in Western Mass. can now clearly see a light at the end of the tunnel. They can see ‘normal’ — and not with a telescope. It’s right around the corner.

We can see a normal Big E coming in September. We can see tourists flocking back here for foliage season. We can see businesses in the area’s many college towns — the hotels, restaurants, and bars — turning back the clock to 2019. We can see the Thunderbirds playing to a packed house at the MassMutual Center. We can see the Bright Nights Ball and a host of other events in MGM’s ballrooms.

It’s a nice picture, and it won’t come together as easily as we might like. We have to hope people find the confidence to go back out and do all the things they did before COVID altered the landscape; recent evidence suggests they will. And businesses have to hope they can find the hired help — and everything else they need, from chicken to lumber to steel — to accommodate the surge in business they hope is coming their way, or is already here.

Aug. 1 is still more than two and a half months away. That’s an eternity for struggling businesses. We’re hoping that ‘normal’ might come sooner — and the governor says he might adjust his timetable if there is enough science to warrant it) — but at least we can now see it on the horizon.

Coronavirus Law

A Stern Test

By Marylou Fabbo

With schools reopening, parents and employers will be in a difficult boat together as they attempt to juggle parenting with personal and professional responsibilities.

Parents are understandably anxious about how they will meet their obligations to both their children and their employers. Several school districts have announced hybrid returns with students alternating between attending school and remote learning. Some jobs just can’t be done from home, and some parents who would otherwise be able to work at home will be needed to help their children with remote learning (or breaking up arguments).

To make matters worse, schools that are already back in session have shown us that, despite precautions that are being taken, school-based COVID-19 outbreaks are a real concern.

Employment-law Compliance

There is no question that many parents will be working from home in some capacity once the school year starts. Businesses should keep in mind that laws that are applicable in the workplace don’t go out the door simply because the workplace has moved to an employee’s home.

Marylou Fabbo

Marylou Fabbo

“Does workers’ compensation insurance apply when an employee trips over a toy during the workday and fractures her ankle?”

For instance, Massachusetts employers must continue to make sure their employees take their 30-minute meal break and keep records of all hours worked, which may not look like the normal 9-to-5 workday. State and federal laws that require employers to provide a reasonable accommodation to disabled employees in the workplace apply to remote employees as well.

To meet these requirements, employers may need to do things such as make adjustments to equipment or the manner in which work is completed. Notices that must be posted in the workplace should be electronically distributed or mailed to an employee.

Still, there are many unanswered questions, and businesses are advised to consult with legal counsel before taking any risky actions. For example, employers are required to reimburse employees for required business-related expenses, but what does that mean when employees use their own laptops and internet for at-home work?

Does workers’ compensation insurance apply when an employee trips over a toy during the workday and fractures her ankle? How does an employer prevent and address sexual harassment in the remote workplace? Is it discriminatory to distribute extra or different tasks that can’t be done at home to older employees who no longer have kids at home? All these issues should be discussed with your employment-law advisors.

Job-protected, Paid Time Off

Not all employees will be able to work when their children are taking classes from home. Employers should be prepared to work with a reduced staff for the foreseeable future. Federal laws will provide many parents with job-protected time off when school is closed, which includes situations where some or all instruction is being provided through distance learning.

The Families First Coronavirus Response Act (FFCRA) generally requires employers to provide paid time off to employees who cannot work (or telework) because their child’s school is closed. However, it’s not enough that a child is attending class remotely. The parent must be needed to care for the child, and the child must be under 14 absent special circumstances.

Still, the FFCRA does not cover all employees or all employers. Employers with 500 or more employees are not covered by the law, while small employers and healthcare providers may be exempt from certain requirements. Also, employees who have been employed for less than a month are only eligible for a maximum of two weeks of ‘emergency sick’ leave, while employees who have been employed for at least 30 days may be able to take up to an additional 12 weeks of expanded family and medical leave (EFML), including on an intermittent basis, assuming that the leave hasn’t already been taken for other permissible purposes.

Eligible employees can earn up to $200 per day when taking childcare EFML, subject to certain maximum dollar amounts. Lawmakers in several states, including Massachusetts, are considering legislation that would fill the gaps in the FFCRA’s paid-leave provisions, and several states have already extended virus-specific paid leave. Employers whose employees aren’t eligible for protected leave will have to decide whether to allow job-protected leave or lay off or otherwise separate with the employee.

School-related Exposure

Unpredictable, illness-related absences can pose another challenge for employers and employees. Children may be exposed at school and bring the virus home.

Employees may be needed to care for their children who are ill and may even test positive themselves. The FFCRA provides up to two weeks paid time off for COVID-related illnesses. The Massachusetts paid-sick-leave statute and the FMLA may also provide employees with paid time off. Employees may also be able to take protected time off (or time at home) as a reasonable accommodation for the employee’s own disability that makes it risky for the employee to go into the office.

Plan Ahead

There’s never been a return to school quite like 2020. The only certainty is that employers could not possibly plan for all potential scenarios. Businesses should make sure they have effective remote-work policies, practices, and procedures in place, be prepared to operate with fewer employees on an intermittent and possibly long-term basis, and designate one or more people within the organization to whom management and employees can direct their questions.

Marylou Fabbo is a partner with Springfield-based Skoler, Abbott & Presser, P.C., a law firm that exclusively practices labor and employment law. She specializes in employment litigation, immigration, wage-and-hour compliance, and leaves of absence. She devotes much of her practice to defending employers in state and federal courts and administrative agencies. She also regularly assists her clients with day-to-day employment issues, including disciplinary matters, leave management, and compliance; (413) 737-4753 ; [email protected]

Coronavirus

Restaurant Owner Says Reopening Will Be Exciting, but Scary, Too

Eastside Grill’s new outdoor seating area

A new mural starts to take shape in Eastside Grill’s new outdoor seating area, as restaurants anticipate outdoor seating becoming much more prominent under state reopening guidelines.

There’s a little alleyway beside Eastside Grill in Northampton that used to hold a few dumpsters and parked cars, but not anymore — it’s been converted into an outdoor dining space. Last week, local artists painted a mural of the Big Easy there, to reflect the restaurant’s New Orleans influences.

Reopening the restaurant’s doors is certainly big. But nothing about it has been easy.

“When they shut us down, I’ve never been so anxious in my life,” owner Debra Flynn said. “This is my life. This is my employees’ life; they depend on this income to pay their bills. It was really scary at first, and it still is, actually, because we don’t know what’s going to happen once we open up. We won’t be making as much money as we once did, and there are so many restrictions. What’s going to happen when we open?”

For that outdoor seating area, Flynn has a bistro feel in mind, with eight high-top tables, spaced at least six feet apart, that seat two diners each; she doesn’t want more than two to a table at first. The space is adorned by large donated urns, and local landscaper Justin Pelis donated some plants.

“Everyone has really come together,” she said. “I have an incredible staff. The executive chef has refined the menu to keep costs down, yet it’s creative and inventive, and my general manager has been running back and forth to Restaurant Depot to get things we need.”

They’ve both been multi-tasking for some time; in fact, a team of only four, including Flynn, have been maintaining a robust curbside-pickup and delivery service five days a week since early in the shutdown.

“It was very popular,” she said, before drawing on some hyperbole. “We went from zero to a million in two seconds. We’ve never done anything like that, and that first week we opened, we were going very quickly.”

At first, the restaurant offered its fare through curbside pickup — the customer would pay over the phone, and the food would be handed through the passenger-side window — or delivery, to Northampton destinations initially, but that’s being expanded to Hatfield, Florence, Leeds, and Easthampton.

“I don’t know if delivery is ever going to go away,” she added. “For people who don’t want to sit at a table, they can take it home. Especially for the elderly, it’s been great.”

Flynn was able to access a Paycheck Protection Program (PPP) loan, but even that was fraught with anxiety.

“No one was telling us how it worked; nobody knew anything,” she said, adding that she was thrilled when the PPP guidelines were changed last week, extending their use by an additional eight weeks — which is critical for restaurants that had little or no work available for their teams over the first eight weeks of the loan.

She had the aforementioned skeleton crew making and delivering takeout, but what about the bartenders? “The bar is closed right now — sure, you can take out beer and wine in bottles, but you don’t need a bartender to grab a bottle. The bar won’t be open until phase 3 — maybe phase 4. No one’s allowed to set up a bar.”

When the governor says restaurants can open, Eastside’s hours will shift again, to Wednesday through Sunday, with a longer day on Sunday: noon to 8 p.m., marking the first time Eastside Grill has effectively served lunch.

“I cannot wait to reopen, even if it’s going to be 16 seats on one side of a small patio. It just generates people being out and being happy and being able to have a drink again — come in, have a cocktail, have an appetizer and dinner, and relax.”

It’s all part of being creative at a difficult time, one she knows isn’t exclusive to restaurateurs.

“Retailers are having it bad, too,” Flynn said. “With curbside pickup, nobody can try anything on because they can’t go into the building. So retailers have it as bad as restaurants do.”

Still, she noted, the restaurant industry is in many ways unique in the challenges it will face when it can once again serve guests.

“I cannot wait to reopen, even if it’s going to be 16 seats on one side of a small patio,” she said. “It just generates people being out and being happy and being able to have a drink again — come in, have a cocktail, have an appetizer and dinner, and relax.”

After all, dining out is an experience, one that can’t be replicated by takeout food, no matter how tasty.

“It’s the feeling of being served — that’s what it’s all about,” she told BusinessWest. “We were never a takeout business, and it took a while to make the food look nice. We’re used to putting it on a plate and making it look appetizing. Takeout is a whole different ballgame; people eat with their eyes, and a lot of times takeout doesn’t look as pretty.”

Flynn was quick to add, however, that the takeout ‘plating,’ if one could call it that, did begin to look nicer as the weeks wore on. Not as good as reopening the doors will look, when she and her team can begin serving up that New Orleans culinary spirit in person once again.

—Joseph Bednar

Coronavirus Cover Story

Baby Steps

After more than two months of a widespread economic shutdown, Massachusetts is opening its economy again — sort of. The plan, announced by Gov. Charlie Baker on May 18, allows some businesses to open their doors under tight health restrictions, while others — including restaurants, spas, and most retail — have to wait longer to invite the public inside. What’s got businesses frustrated is not knowing exactly when their turn will come — and the financial impact they continue to endure every week they have to wait.

Massachusetts is the 15th-most populous state in the U.S., yet, the day Gov. Charlie Baker released his economic reopening report, it had reported the fourth-most total COVID-19 cases in the country.

So, the reopening was never going to be a free-for-all.

“We were all very aware that, no matter what we went forward with, there will be more infection and more deaths,” said Easthampton Mayor Nicole LaChapelle, one of 17 members of the governor’s Reopening Advisory Board. “While the public-health metrics are numbers, statistics, they’re also people — they’re your neighbors, maybe your mother or father.

“People want to open,” she told BusinessWest, “but they don’t want to put people at risk — themselves, their customers, their parents. The compassion is remarkable.”

That’s why it was no surprise that Massachusetts is reopening slowly and cautiously. Last week, manufacturing facilities, construction sites, and places of worship were allowed to return under strict guidelines (more on those later), and on May 25, the list will expand to offices (except in Boston) and labs; hair salons, pet grooming, and car washes; retail, with remote fulfillment and curbside pickup only; beaches, parks, drive-in movies, and some athletic fields and courts; fishing, hunting, and boating; and outdoor gardens, zoos, reserves, and public installations.

That covers what Baker is calling phase 1, with three more reopening phases to follow. Conspicuously not on the phase-1 list? Restaurants, spas, daycare centers, in-store retail … it’s a long list. And, for many business leaders, a frustrating one.

Nancy Creed

Nancy Creed says businesses in phase 1 got the clarity they were seeking, but those in phase 2 are still waiting.

“There’s certainly an appreciation for public health, but there also needs to be some common sense, and I think it’s very hard to explain why it’s OK for 200 people to be in line at Home Depot, but a small, downtown store can’t have two or three people in it,” Rick Sullivan, president and CEO of the Economic Development Council of Western Massachusetts, told BusinessWest.

“Certainly everyone has to be smart,” he added, “but I think there needs to be more common sense brought into the reopening. I appreciate where the governor is — the balancing act — and I think the reopening committee did a great job with outreach, but there needs to be clear guidance and some common sense.”

Others were less diplomatic.

“While protecting public health is important and something we all support, it defies logic to declare that the opening of barbershops and hair salons is safe, while claiming opening small retail businesses is not,” Jon Hurst, president of the Retailers Assoc. of Massachusetts, said in a statement.

“The same is true for the opening of churches and large office buildings,” he went on. “Having two or three people in a retail shop is every bit as safe, if not safer, than the allowable businesses in phase 1. The Baker administration has consistently picked winners and losers during this crisis, and it is disappointing to see that trend continue in the reopening plan.”

As president of the Springfield Regional Chamber, Nancy Creed has been in touch with her members for almost three months now on the impact of the COVID-19 pandemic. She, like Sullivan, understands the delicate balance the state is walking.

“When we were part of the presentation to the advisory board, the last thing I said to them was, ‘our businesses are struggling, but they are surviving this. What they can’t survive is for it to happen again.”

“Certain sectors thought they’d be in phase 1, so there’s always that frustration,” she told BusinessWest. “When we were part of the presentation to the advisory board, the last thing I said to them was, ‘our businesses are struggling, but they are surviving this. What they can’t survive is for it to happen again. So we need to be smart about it and make sure we’re doing everything we can so the reopening is successful, and this doesn’t happen again.’”

She knows that’s not easy for many small businesses to hear, particularly ones with no revenue stream at all during this time.

“This is different for everyone, but businesses are muddling through it, pivoting, doing the things they need to do for basic economic survival,” she added. “But if it happens again, I don’t think we’ll survive the second round.”

Hence, baby steps, and a multi-phase reopening that offers real hope for many sectors, but continues to draw no small amount of criticism as well.

Guidance — and Lack Thereof

According to Baker’s plan, each phase of the reopening will be guided by public-health data that will be continually monitored and used to determine advancement to future phases. The goal of a phased plan is to methodically allow businesses, services, and activities to resume, while avoiding a resurgence of COVID-19 that could overwhelm the state’s healthcare system and erase the progress made so far.

Each phase will last a minimum of three weeks and could last longer before moving to the next phase. If public-health data trends are negative, specific industries, regions, or even the entire Commonwealth may need to return to an earlier phase.

Nicole LaChapelle

Nicole LaChapelle

“When talking to businesses and different groups and unions, the question was always, ‘what are the barriers right now, what are your biggest challenges, but more importantly, what do you need to see happen in order for your industry to open, and what is the timeline for that to happen for you?’”

In addition, success in earlier phases will refine criteria for future phases, including travel, gathering sizes, as well as additional openings in retail, restaurants, lodging, arts, entertainment, fitness centers, museums, youth sports, and other activities.

“Going in, the goals were, how do we safely and slowly open the Massachusetts economy?” LaChapelle said. “And that is directly tied to public-health metrics. When talking to businesses and different groups and unions, the question was always, ‘what are the barriers right now, what are your biggest challenges, but more importantly, what do you need to see happen in order for your industry to open, and what is the timeline for that to happen for you?’”

It was helpful, she explained, to seek input from myriad sectors and businesses — those deemed essential and never forced to shutter; those that had to pivot, such as retailers boosting their online presence and manufacturers shifting to making masks and face shields; and businesses that have been effectively sidelined.

“The board, at no point, even at the beginning, was like, ‘let’s get this thing going and roll it out immediately,’” she added, noting that she understands the need for companies to start ramping back up. “They may be a little disappointed, but they’ve been very understanding. There’s some education we have to do, but nobody is really upside-down about it.”

In order to reopen, businesses must develop a written COVID-19 control plan outlining how its workplace will prevent the spread of the virus. They must also create and display posters and signs describing rules for maintaining social distancing, hygiene protocols, as well as cleaning and disinfecting.

“I think there needs to be an appreciation for restaurants and small Main Street businesses that are not going to be able to just comply with the state’s protocols immediately.”

Sullivan appreciates the attention to public-health concerns, but said it offers little comfort for businesses stuck in an as-yet-undefined phase 2 — or beyond. While the reopening plan gives clear guidance for businesses in phase 1, those in phase 2 don’t even get a target date they can work toward or a set of protocols they can begin to develop. And that lack of clarity has led to frustration.

“I do think many businesses, especially smaller businesses, were kind of expecting more things to open up,” he said. “I think there needs to be an appreciation for restaurants and small Main Street businesses that are not going to be able to just comply with the state’s protocols immediately. They’ll need to plan, order some equipment, and spend some time reorganizing their business, because it’s going to be different than it was pre-COVID. And it’s not something they can do overnight. Many businesses are just looking at lead time — they want to open sooner than later, but they want lead time so they can be ready to go.”

Creed agreed.

“I think what businesses wanted, at least in the beginning, was some clarity about the guidelines, about the timelines, about the standards, about the checklists, all those things, so they can create their own plan — and that was achieved, at least for phase 1,” she explained. “But I am hearing the phase-2 people saying, ‘well, I wanted to be able to plan, but I don’t have enough guidance right now,’ so there’s some frustration.”

The Massachusetts Restaurant Assoc. said as much in a statement following the plan’s release.

“Obviously, every restaurateur is disappointed with the lack of a defined reopening date in today’s announcement,” it noted. “Massachusetts restaurants need their suppliers to have time to restock perishable inventory before it can be delivered to them. They need to notify employees about returning to work and conduct other due diligence to ensure restaurants can open effectively.”

Safety and Numbers

Across Massachusetts, the reopening plan sparked a spectrum of reactions, all acknowledging the competing health and economic interests in play, but expressing different levels of understanding and frustration — and often both.

“We realize that every employer in Massachusetts would love to hear that they can reopen immediately. But we also acknowledge that a phased reopening balances the need to restart the economy with the need to manage a public-health crisis that continues to claim 100 lives a day in Massachusetts,” John Regan, president and CEO of the Associated Industries of Massachusetts, noted in a statement.

Even as some businesses start to reopen and others plan to do so, the state Department of Public Health updated its stay-at-home advisory, replacing it with a new “Safer at Home” advisory, which instructs everyone to stay home unless they are headed to a newly opened facility or activity. It also advises those over age 65 and those with underlying health conditions to stay home, with the exception of trips required for healthcare, groceries, or that are otherwise absolutely necessary. All residents must continue to wear a face covering in public when social distancing is not possible, and individuals are advised to wash their hands frequently and be vigilant in monitoring for symptoms. Restrictions on gatherings of more than 10 people remain in effect.

The state also encourages working from home when possible, and Baker’s office released a list of 54 large companies — employing about 150,000 workers among them — that have issued statements extending work-from-home policies for the remainder of the spring, with numerous reporting intentions to extend into the summer and, in some cases, for the remainder of 2020.

“As MassMutual develops our plan to gradually return to the office, the health and safety of our employees is our top priority,” said Roger Crandall, chairman, president, and CEO of MassMutual, noting that his employees will return to the office no sooner than the beginning of September.

“We expect to come back in a slow, phased manner,” he added. “We will continue to monitor and reassess and will be factoring in a number of considerations — from federal, state, and local government and health officials’ guidance to a sustained reduction in cases in our operating locations, to broader available testing and our employees’ personal circumstances and comfort.”

Patrick Sullivan, Massachusetts President of People’s United Bank, is also promoting continued work from home where possible.

“People’s United Bank is assessing re-entry conditions and protocols to ensure the safety of our team members and our customers,” he said. “Our approach will balance the needs of employees with the needs of the business. As we have been successful in pivoting and adjusting to working from home, we will continue to encourage this behavior.”

Still, those are businesses that can at least operate in most aspects. Retail stores can’t so easily adjust — and have been devastated by the inability to invite shoppers into their stores.

“We are incredibly disappointed with how Governor Baker has treated retail businesses throughout the health and economic crisis. Massachusetts has been one of the most hostile states in the nation toward small retailers.”

“We are incredibly disappointed with how Governor Baker has treated retail businesses throughout the health and economic crisis. Massachusetts has been one of the most hostile states in the nation toward small retailers,” said Hurst, noting that Massachusetts stores are losing Memorial Day weekend at a time when other states have let them open up shop by now. “Retail businesses are ready and able to open safely now with a limited number of people in stores and for appointment shopping. By not allowing that until late June, many small, Main Street businesses will close forever.”

That’s not hyperbole for small businesses of many kinds. Matt Haskins, who operates the popular Matt’s Barber Shop in Amherst, said a recent grant from the Downtown Amherst Foundation has helped him stay afloat at a time when he doesn’t know when college business will return.

“Just five minutes before [receiving word of the grant], I was on a phone call discussing if Matt’s Barber Shop was going to make it or break it,” he told foundation officials. “The grant helps me think we’re going to make it.”

So will being able to open his doors again on May 25. And that’s all most business owners want right now — a target. Creed hears that, but at the same time, she’s encouraged by recent chamber polling suggesting the percentage of business owners who feel they’ll survive this crisis is rising.

“What that says to me is people are finding a way to make sure it doesn’t put them out of business,” she said, “which shows the resilience of the businesses we have here.”

Yes, they have resilience, in spades. Now, they want clarity — and some hard dates.

Joseph Bednar can be reached at [email protected]

Coronavirus Special Coverage

Q & A for the Reopening

By Ellen McKitterick and Mark Emrick

Employers are beginning to look at bringing employees back into the workplace and/or opening up their offices after being closed for six to eight weeks. Here is a sampling of the key questions that the HR Hotline staff at the Employers Assoc. of the NorthEast (EANE) is responding to.

Ellen McKitterick

Ellen McKitterick

Mark Emrick

Mark Emrick

How do I respond to an employee who says they are afraid to return to work? Each instance needs to be looked at on a case-by-case basis. If the employee has a valid reason that fits within an FMLA, ADA, or other reasonable accommodation, then be sure to start the interactive process and see if the request is reasonable. Otherwise, general fear is not a valid reason, and the employee would be voluntarily resigning.

How do I respond to an employee who says they don’t feel safe returning to the workplace? Assuming you have taken all required cleaning and disinfecting steps, you can respond: “we are operating a safe workplace. We are operating in accordance with state and local safety and health guidelines. There currently is no recognized health or safety hazard in our workplace.” Otherwise, general fear is not a valid reason, and the employee would be voluntarily resigning.

As we ramp up our operations, we need our workforce to return to the physical workplace. How do I respond to an employee’s request to continue working from home? Employers do not have to permit work from home if it does not fit their business needs; it is not up to the employee. That being said, in our current crisis, it is wise to allow working from home until the COVID-19 situation is under better control.

What if I can only bring my employees back part-time? They have been on unemployment during their furlough. How will this affect their ability to collect benefits? Employees who are collecting any benefit from unemployment insurance (UI) will continue to receive the additional $600 from the federal government at least through July 31. Partial unemployment may still qualify them for some UI; there is a partial-payment calculator at mass.gov to determine the possible benefit.

Can my employees continue to collect unemployment after I have asked them to come back, but they refuse? They can try, but they are not eligible if you have offered work. Employers should notify the Department of Unemployment Assistance of any employee refusing to return.

What do I do if my employee says they are making more money on unemployment than working for me and do not want to return right away? The employee needs to make a decision. Either they take the short-term gain of extra unemployment or the long-term gain of their job. This would be considered, in most cases, voluntary resignation. Their position may not be available when they decide to return to work.

What effects does our recent furlough have on my employees’ flexible spending account and dependent care accounts, the loss of contributions, and amount of time remaining for contributions in 2020? Employees may be allowed to make changes to some accounts, but it would require an amendment to your plan. IRS Notice 2020-29 may answer more questions.

Can I screen or test employees for symptoms of COVID-19 before they return to work? What screening methods should I use? Yes, during a pandemic you can take employees’ temperatures or ask business-related health questions such as “have you had symptoms, a fever over 100.4, or been in contact with someone diagnosed with COVID-19?: Remember that HIPAA and privacy laws apply.

Can I require older workers who are at high risk to continue to stay at home? No, you cannot exclude anyone in a protected class. If they voice a concern, then you should enter into the interactive process and see if a reasonable accommodation may apply.

Do I have to provide face masks for my employees? In Masachusetts, employees will be required to wear them at work, but it is to be determined who has to provide them. Neighboring states are all requiring the employer to provide needed personal protective equipment.

How do I respond to any employee who refuses to adhere to our social-distancing guidelines or wear a face covering in the office? Upon return to work, employers should put employees on notice of any new policy, any special protocols that may apply, and the personal protective equipment that is required. Engage in an interactive process to ascertain any concerns and determine if special conditions may apply before moving to discipline.

What should I do if my employees are complaining about coming back to work and the extra requirements? Employees are entitled to complain about working conditions to fellow employees. They should remain professional and follow all company policies, but they have the right to voice their opinion as long as they are not defamatory or causing disruptions.

Ellen McKitterick is EANE’s newest HR business partner. She advises member organizations on all aspects of employment law, including wage and hour issues, employment discrimination, employee benefits, leaves of absence, and unemployment, and trains EANE members and non-members on harassment prevention, basic employment concepts, employee medical and leave issues, and key management skills. Mark Emrick is a senior HR business partner at EANE with consulting responsibilities for all aspects of the HR function — recruiting, interviewing, hiring, training, benefits administration, compliance, performance management, coaching, development, corrective action, and terminations. He is also an experienced investigator for employee complaints and issues.

Law Special Coverage

Calling Back Workers

By Mary Jo Kennedy, Esq. and Sarah Willey, Esq.

Mary Jo Kennedy

Mary Jo Kennedy

Sarah Willey

Sarah Willey

As businesses prepare for reopening, many employers are summoning laid-off and furloughed employees and notifying employees who have been working remotely to return to the physical workplace.

Some employers are anticipating that their reopening may be a gradual process. Employers may do a ‘soft reopening’ in order to test workplace-safety measures such as social distancing. Some businesses may find, as a result of new safety procedures, that their workplace no longer requires certain positions. As a result, employers may not need the same number of employees or positions they had back in early March.

However, recalling only a portion of a workforce does have its own risks. Employers should carefully consider who and how many workers to recall and when to have them return.

Once notified, workers’ responses to the callback may vary. Some employees will welcome the return to work as a sign that things are returning to ‘normal,’ while others may have mixed feelings as they may want or need to stay home until the pandemic is over. Employers must consider how to best respond to workers’ requests.

How do you select which employees to call back when calling back fewer than all?

First, identify the types of positions and the number of employees needed for each position to be recalled. There may be certain skill sets or knowledge base needed in order to ramp up business after the shutdown.

“If they have medical concerns regarding returning to work, they should discuss those concerns with their supervisor or human-resources team and encourage them to stay home or arrange an alternate work assignment.”

Second, businesses should consider any policy or past practice regarding recalling employees as there may be a legitimate business reason for not following them. Employers should evaluate their business rationale for the selection process and document the criteria used for selecting one employee over another. Selection criteria may appear neutral on the surface, but the effect of its application may inadvertently result in the elimination of all or a majority of a group of employees in a class protected under discrimination laws. As a result, selection criteria may need to be reconsidered in order to avoid possible discrimination claims.

Can you decide not to recall employees because of a concern regarding their health?

Employers may have a genuine concern that a group of employees may be susceptible to greater harm if infected with COVID-19. For example, an employer may be concerned about possible exposure to COVID-19 of an older employee, employees with known medical conditions, or a pregnant employee. Any selection decision based on a person’s age, perceived disability, or pregnancy will expose the employer to discrimination claims.

Employers should not take a paternalistic view of deciding what is best for its employees. Rather, an employer should let employees know that, if they have medical concerns regarding returning to work, they should discuss those concerns with their supervisor or human-resources team and encourage them to stay home or arrange an alternate work assignment.

What if you laid off some and furloughed other employees?

Employers should consider calling back furloughed employees before rehiring laid-off employees. Employers may have given furloughed employees written assurances that they would be called back and may have retained them on health insurance, indicators that the employer intended to have the furloughed employees return to work.

How do you communicate the call back?

Employers should communicate the offer to return to work in writing. The communication should detail the start date, full-time or part-time status, position, hours, work schedules, wages, location, and conditions of the job.

What if a business calls back laid-off or furloughed employees and the response is that an employee has found other employment?

If an employer is told that a laid-off or furloughed employee is not returning to work because the individual has found employment elsewhere, the employer should document the reason for not returning and then move to the next employee on the recall list. If your business participated in the Paycheck Protection Program, documenting the reason for the refusal is critical in order to meet the loan-forgiveness requirements.

Also, if accrued but unused vacation time has not previously been paid, it should be paid out to the employee immediately, and if the employee was on the employer’s health insurance, a COBRA notice should be sent to the employee.

What if a business calls back a laid-off or furloughed employee who is unable to return to work because of a lack of childcare?

With schools and daycare facilities currently closed, employees with school-aged children may not have childcare options. Under the CARES Act, individuals who are unable to work (including telework) and are the primary caregiver for a child whose school or childcare facility is closed or whose childcare provider is unavailable due to COVID-19 can receive Pandemic Unemployment Assistance.

In addition, the employee may be eligible for paid extended family and medical leave under the Families First Coronavirus Response Act (FFCRA), under which eligible employees who are unable to work at their normal worksite or by means of telework are entitled to 12 weeks of paid extended family and medical leave (at two-thirds of their regular rate of pay) to care for a child whose school or place of care is closed (or childcare provider is unavailable) due to COVID-19-related reasons.

The FFCRA provides eligibility for paid extended family and medical leave to an employee who was laid off or otherwise terminated by the employer on or after March 1, 2020 and rehired or otherwise re-employed by the employer on or before Dec. 31, 2020, provided that the employee had been on the employer’s payroll for 30 or more of the 60 calendar days prior to the date the employee was laid off or otherwise terminated.

What if an employee has been working remotely during the shutdown and is unable to physically return to the worksite because of a lack of childcare?

While many remote employees have been able to work effectively at home during the forced shutdown, other remote employees may have struggled due their type of work not being conducive to telework. An employer may have valid concerns about an employee’s telework performance, such as the quality and quantity of the work, and should address with remote employees any performance issues.

An employer should discuss with an employee the possibility of flexible or reduced hours in a physical workplace or a modified remote-work schedule. If these options are not viable, an employee unable to return to their normal worksite may be eligible for unemployment.

What if an employee who has a medical condition increasing their risk of harm if exposed to COVID-19 wants to continue working remotely?

Addressing this issue requires consideration of federal and state reasonable-accommodation laws. If the medical diagnosis constitutes a disability under state or federal disability laws, the employee may be entitled to a reasonable accommodation. Given these unprecedented times, an employer may treat a medical condition that puts an individual at an increased risk of harm if exposed to COVID-19 as a disability. The employer should also explore with the employee other possible accommodations in addition to working remotely.

What if an employee can work but has a medical condition, adding increased risk of harm if exposed to COVID-19, but the employee’s job duties cannot be done remotely?

Dealing with employees whose work cannot be done remotely but are at an increased risk of harm if exposed to COVID-19 has unique concerns, and each situation should be considered on a case-by-case basis. If the employee was advised by a healthcare provider to self-quarantine due to concerns related to COVID-19 and the employer is subject to the FFCRA, the employee may be eligible for 80 hours of paid sick leave under FFCRA.

However, in this scenario, the FFCRA requires that the employee be “particularly vulnerable to COVID-19” and that following the advice of a healthcare provider to self-quarantine prevents the employee from being able to work, either at the employee’s workplace or by telework. Employers should obtain appropriate medical documentation substantiating the reasons for the self-quarantine.

In addition, if the medical diagnosis constitutes a serious medical condition or a disability, the employee may be entitled to either an unpaid leave of absence under the Family Medical Leave Act (if the employer has 50 or more employees and as such is a FMLA-covered employer) or a leave of absence as a reasonable accommodation for the disability.

What if an employee wants to continue to work remotely because the employee has an immediate family member who has a medical condition that puts that family member at increased risk of harm if exposed to COVID-19?

An eligible employee of a FMLA-covered employer can take a leave of absence to care for a family member with a serious medical condition. But if the family member does not need the employee’s care, the requirements for FMLA leave would not be met.

Under the American with Disabilities Act, employers are required to provide qualified disabled employees with a reasonable accommodation. When leave and accommodation laws do not apply, employees may ask employers to apply common decency to the situation and let them return to the physical workplace at a later time.

These are challenging issues for employers, who must balance the need to protect employees from COVID-19 with the need to maintain a workforce to keep the business open.

Employers should be cautious when navigating the various leave and disability laws in order to avoid lawsuits. Before denying employees’ leaves or other reasonable-accommodation requests, employers should engage with employees in order to assess the validity and reasonableness of the requests and should document the steps taken.

Mary Jo Kennedy is a partner and chair of the employment group at Bulkley Richardson, and Sarah Willey is counsel and member of the employment group at Bulkley Richardson.

Opinion

Editorial

If you watched Gov. Charlie Baker at his highly anticipated press conference to announce the state’s reopening plan last week, you may have been very disappointed.

The governor said he is trying to create a balance between keeping people safe and attempting to resurrect an economy that was seen by many as being one of the strongest in the country — although not anymore, thanks in part to the governor.

If balance is the goal, this plan — if we can really call it a plan — falls way short. It doesn’t move quickly or profoundly enough, and it leaves far too many of the small businesses that form the backbone of the state’s economy without any real chance to weather this storm.

In short, Gov. Baker’s plan creates winners and losers, haves and have-nots —  a situation where Walmart or Home Depot can open their doors to the public, but small, locally owned retailers are forced to keep theirs closed or operate curbside (if they can); a situation where a yoga school with eight students is put in the same category as a Planet Fitness with thousands of members.

As most everyone knows by now, the Baker administration’s reopening plan has four phases — named ‘start,’ ‘cautious,’ ‘vigilant,’ and ‘new normal.’ On May 18, a day every business owner had circled on his or her calendar, the governor gave some details on phase 1. Manufacturing and construction could restart immediately, with restrictions, as could places of worship, while hospitals and community health centers can now provide high-priority preventive care, pediatric care, and treatment for high-risk patients and conditions. On May 25, laboratory and life-sciences facilities can open; offices can reopen, except in Boston; and recreational-marijuana shops can reopen, as can salons, barber shops, and pet groomers. Retail facilities can open for remote fulfillment and curbside pickup.

Gov. Baker’s plan creates winners and losers, haves and have-nots —  a situation where Walmart or Home Depot can open their doors to the public, but small, locally owned retailers are forced to keep theirs closed or operate curbside.

But there are no details on phase 2, which includes restaurants and lodging, some healthcare facilities, and playgrounds and pools, or phase 3, which includes bars, casinos, gyms, and museums. All that’s known is that each phase will last at least three weeks and could be extended before moving on to the next stage, depending on factors like COVID rates, testing, and healthcare-system readiness.

For small businesses, this slow, plodding pace and lack of details makes it difficult, if not impossible, to plan and — more importantly — stay alive. The governor’s plan is anything but a plan, and it will spell the demise of many small businesses.

Rick Sullivan, president of the Economic Development Council of Western Massachusetts, put things in perspective when he told BusinessWest, “I think there needs to be an appreciation for restaurants and small Main Street businesses that are not going to be able to just comply with those protocols. They’ll need to plan, order equipment, and spend some time reorganizing their business, because it’s going to be different than it was pre-COVID. And it’s not something they can do overnight.”

The reopening panel could have recognized the needs of small businesses and implemented common-sense protocols to allow them to open. Instead, it chose not to. Clearly, there doesn’t seem to be an appreciation for just how endangered our state’s small businesses are, or what will become of our cities and towns if they are allowed to die on the vine.

These businesses need more than a belated plan with cleverly (or not-so-cleverly) named stages. They need a common-sense blueprint for effectively reopening an economy that’s been shut down for two tortuously long months.

The governor’s ‘plan’ is anything but that.