How Meta, Instacart, Olive Garden and Others are Managing Covid-19 Compliance Challenges

Highlights from the Bloomberg Law Leadership Forum

As the pandemic presses into its third year, corporate legal departments — and the law firms that advise them — are left to deal with the resulting patchwork of ever-changing health and safety guidelines. To help business leaders build a solid strategy and avoid the legal risks posed by an uncertain future, we sat down with experts from a range of industries at this year’s Bloomberg Law Leadership Forum. Together, we discussed the latest trends and issues in worker health and safety, Covid-19 litigation, recruiting and retention strategies, and more.?

Fireside Chat

We kicked off the event with a conversation with Douglas L. Parker, Assistant Secretary of Labor and Occupational Health and Safety at the U.S. Department of Labor, hosted by Bloomberg Law News Director, Jo-El Meyer. During their discussion, we learned how OSHA and its mission have been transformed over the course of the pandemic. As Douglas said, “We think a lot about occupational safety and prevention of injuries but, in fact, the health effects of exposures have a greater overall impact on the health of workers nationally than traumatic injuries. Covid-19 really brought the importance of occupational health into focus.”

Employment Litigation Trends and Covid-19 Compliance Challenges

After the fireside chat with Douglas, Bloomberg Law’s Dori Goldstein launched the main panel discussion, focusing on employment-related litigation and compliance trends impacted by Covid-19.?

Moderator

• Dori Goldstein — Assistant Team Lead for Bloomberg Law. Dori is an employment attorney who focuses on equal employment, disability, accommodation, and Covid-19 issues in the workplace.

Guest Speakers

• Elise M. Bloom — Partner at Proskauer Rose. Elise is also the former co-chair of Proskauer’s labor and employment department and co-head of the class and collective actions group.
• Matt Broad — General Counsel and Corporate Secretary of Darden Restaurants. Matt oversees Darden’s legal affairs, including corporate governance, labor employment, law development, litigation, internal audit, and corporate and regulatory compliance.
• Steve Chariyasatit — Vice President, Legal and Deputy General Counsel at Instacart. Steve manages a team responsible for all domestic and international litigation, as well as contractor- and employee-related matters.
• Meghan Cherner-Ranft — Director and Associate General Counsel for Labor and Employment at Meta. Meghan leads a team of employment lawyers, providing advice and counsel across all of Meta’s businesses and apps.

Are we past the bulk of Covid-19 compliance issues?

Opening with a question for Elise, we wanted to know: Now that we are over two years into the pandemic, vaccines are available, and infection rates are going down, are we past the bulk of Covid compliance issues?

While Elise said, “it would be nice to say yes,” unfortunately, there is “just a different set of challenges and compliance issues.” Many companies are struggling to deal with what it means to be up-to-date on vaccination and whether or not to require employees to have a booster in addition to being fully vaccinated. In addition to that, Elise says she’s now seeing requests for exemption from the vaccine requirements. Moving forward, business leaders will have to address how they handle not only medical and religious exemption requests, but also issues regarding boosters and pregnancy exemptions.

When polling the forum’s audience of more than 250 attendees, the majority agrees that pandemic-related issues will continue beyond this winter into next year.

How has Covid compliance impacted tech companies?

To get a tech company’s perspective on Covid compliance, we wanted to see how Meta has been handling the pandemic. “Has [being a tech company] given you a little more flexibility? Do you feel like you’re now at the point where you’re focused on other issues?” Dori asked.

According to Meghan, when the pandemic first began, the concept of remote work was relatively foreign, even for a tech giant like Meta. Still, the company transitioned the vast majority of its employees to remote work, with the exception of a small percentage of essential workers required to keep services and platforms running. Despite Meta’s U.S. offices fully reopening in March of 2022, “we’re still not back to business as usual,” Meghan said. The shift back to the office has put renewed focus on the company’s “people-first” motto. Meghan expects that 2022 will be a transitional year for Meta, where the company will try out different options to see what works best for each employee.

Shifting focus to Instacart, Dori asked Steve, “Where is Instacart, and what has the road been like getting there? Are you back to business as usual?”

Steve pointed out that Instacart experienced rapid growth during the pandemic due to increased demand for its services. At the same time, the legal team was trying to develop new policies in line with a complex patchwork of state and local regulations. “Fast-forward to where we currently are,” Steve said, “and I have to admit, it is a lot easier now that we already put a lot of policies and procedures in place.” However, it’s important to note that “any policy needs to be enforceable all the way to the highest levels of executives.”

Another polling question asked forum attendees about their organization’s long-term plan for remote or in-office work. Almost three-quarters said they will work in the office between one and four days per week.

How has the restaurant industry fared during the pandemic?

As a whole, the restaurant industry was hit particularly hard during the pandemic. We wanted to know how Darden Restaurants dealt with it, so we asked Matt, “Have you had enough time to bounce back?”

With 1,800 establishments and 160,000 employees — 159,000 of which work in the restaurants — Darden Restaurants’ workforce primarily consists of essential workers. As such, a remote transition was simply not an option. As Matt stated, “We experienced shutdowns and had to furlough most of our workers when the dining rooms were closed [during the start of the pandemic].” When restaurants started to reopen, the company made a massive effort to rapidly restaff its locations. According to Matt, this was accomplished with a $250 million+ investment in the restaurant employees, through things like paid time off, direct compensation, and special benefits.

Throughout it all, Darden Restaurants has made decisions anchored to the CDC guidelines and their team member’s voices. As a show of support for its essential workers, Darden also required all offices to remain open throughout the pandemic. Now, the company has landed on a flexible work arrangement for office workers.

Has the employment litigation boom materialized as predicted?

At the start of the pandemic, a lot of experts were predicting an employee-driven litigation boom. “What has that looked like for Darden Restaurants?” Dori asked. While Matt expected the boom, he stated that “it just never materialized…. We’ve only seen a small number of cases where somebody throws in a Covid claim with no facts to support it.” In most situations, it’s just too difficult to prove causation, so those claims are very challenging.

Steve also pointed out that, in terms of the causation behind Covid claims, it might have been easier to point to the work environment as a culprit when people were forced into lockdowns and couldn’t go anywhere else. However, today, it’s a lot more difficult, with people returning to normal life and gathering with friends and family.

Moving to Instacart, Dori wanted to know if the company’s meteoric growth during the pandemic had brought about more lawsuits. While Instacart did expect an increase in lawsuits due to Covid, Steve says that they haven’t seen the amount predicted. Instead, it has only scaled with the increased population of contracted and employed workers.

To get the law firm perspective, Dori asked Elise, “What are you seeing with your clients when it comes to litigation?” The biggest trend Elise reported is claims arising out of the denial of exemption requests — most of which are centered around religious reasons. “While most claims haven’t boiled up to the litigation stage,” Elise said, “I am seeing a number of lawyers’ letters and EEOC charges.” The other interesting thing Elise pointed out is that, as companies are moving back to the office, they are terminating arrangements made with remote employees. As a result, Elise is seeing a rise in claims from both vaccinated and unvaccinated employees.?

These changes have also impacted the way she counsels her clients. For instance, the topics around training have increased, especially those related to the sensitivities that come into play with vaccinated and unvaccinated workers. It has also highlighted the importance of ensuring fair policies across remote and onsite workforces.

While the panelists reported that they have not experienced an increase in employee-driven litigation due to the pandemic, an audience poll also revealed that other issues having a greater impact on business include worker shortages and supply chain issues.

Bloomberg Law Leadership Forum

As the pandemic continues to present corporate legal departments with ongoing challenges, it’s unlikely that we will ever see a “return to normal.” However, we’ve seen how leading industry experts have managed to adapt their policies and strategies to overcome these problems and propel their businesses into the future.?

To learn more about the shifting legal requirements and dynamic compliance issues around Covid-19, click here to view a CLE-eligible replay of this year’s Leadership Forum.