The Impact of COVID-19 on Legal Risk Management Best Practices

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According to Fisher Phillips’ COVID-19 employment litigation tracker, there have been 898 total complaints throughout the United States. As of October 2020, states with the most cases include California (194), New Jersey (108), Florida (81), and New York (60). Remote work and leave conflicts are the most common case type for such litigation, but other cases have involved discrimination and workplace safety (including wrongful death, class actions, and whistleblower cases).

Looking deeper at the “why” of these types of cases can provide insight to employers, as well as offer some risk management best practices to prevent and mitigate these risks.

Discrimination

Most of the discrimination cases involve wrongful termination and typically result from employers simply trying to follow government guidelines or employees alleging employers using COVID-19 as excuse for discriminatory termination.
For example, a woman in Pennsylvania was terminated and believed to be racially reasoned as she was the only non-white member of the human resources team. In Kentucky, a funeral home president was terminated for allegedly following the governor’s recommendation to reduce the size of gatherings. In Dallas, Texas, a kitchen staff member filed a restraining order against the restaurant for which she worked that refused to schedule her for hourly work for violating its no-mask policy (meaning no employee is allowed to wear a face mask despite U.S. Centers for Disease Control and Prevention (CDC) recommendations).

An example of employees alleging that employers are using COVID-19 as a reason for discriminatory termination is a lawn care business owner whose single employee displayed COVID symptoms and quarantined. As the COVID situation evolved, the lawn care business experienced a lull in work. When the employee recovered and notified employer of return, the owner declined due to the lack of work available. The employee sued the employer citing employer retaliation.

Leaves of Absence

Under the federal Families First Coronavirus Response Act (FFCRA), certain employers are required to provide employees paid sick leave or extended family and medical leave for COVID-related reasons.

Leave conflicts or denied requests for leave or remote work have resulted in employees alleging that they didn’t receive paid sick leave or paid family and medical leave that they were entitled to under FFCRA.

Work from Home/Remote Work

Employees who receive a COVID diagnosis or instructed by a healthcare professional to quarantine due to a pre-existing medical condition or age is a common reason employees may request work from home or remote work. Remote work requests have also been requested from employees who may have childcare issues due to COVID or are required to care for a family member.
The best approach to addressing these issues or denying these requests is to review the American with Disabilities Act (ADA) guidelines. If an employee’s request is deemed a reasonable accommodation under the ADA, an employer must grant the request.*

*NOTE: There are exceptions to employers denying an employee’s reasonable accommodation defined by the ADA.

Workplace Safety

Oftentimes workplace safety, especially during a public health crisis like COVID, employees perceive unsafe working conditions differently than defined by governing agencies. For example, violating mask mandates and physical distancing recommendations may be perceived by some as their individual right, whereas employers are responsible for enacting and enforcing such recommendations to protect employee safety and well-being.
Some states protect whistleblowers (people who “blow the whistle” – or complain about unsafe working conditions). If an employer engages an unfavorable employment decision regarding the whistleblower, the employer may face a potential retaliation claim. For example, the City of Philadelphia passed an ordinance that prevents employers from terminating or otherwise retaliating against employees who report unsafe working conditions.

The Occupational Safety and Health Act also states that employers are responsible for a safe and healthy workplace. Local and state Occupational Health and Safety Administrations may have additional requirements. For example, Virginia requires employers to take extra measures to prevent the spread of COVID or may otherwise face penalties.

Additionally, as an extension of workplace safety lawsuits, wrongful-death cases of individuals who fell ill and died have been filed by family members who allege unsafe working conditions led to the loss.

Risk Management Best Practices

Stay in compliance. The best way to avoid litigation is to remain in compliance with all local, state, and federal laws and regulations. One way to do so is to partner with a PEO like QBS who send out monthly legal HR updates to clients and employees.

Train leadership, work closely with HR. A great way to implement risk management best practices is to train leadership and have them work closely with HR to ensure they are in compliance with all legal updates, equipped with knowledge and resources to address employee-related issues regarding COVID (i.e., what to do if an employee contracts or is exhibiting symptoms of COVID, reporting and maintaining information confidentially, how to handle employees who refuse to come to work or be screened for COVID), and strengthening leadership skills (i.e., empathy, problem-solving, critical thinking).

It is also critical that leaders be trained on accurately documenting employment decisions. QBS and its Vensure Employer Services division partners recently hosted a “Defendable Documentation” webinar, which discussed preventing and defending discrimination, wrongful termination, at-will employment, and specific court cases.

Follow safety guidelines outlined by government and public health agencies. In a time of uncertainty and fear, employers should follow the CDC guidelines, as well as state and local requirements. If state and local requirements conflict with federal guidelines, employers should seek professional guidance to avoid penalties, employee lawsuits, and other employment-related issues.

To relieve employers of the stresses and complexities of risk management and workers’ compensation, partner with QBS. As your trusted PEO, we have highly skilled workers’ compensation and risk management specialists who can provide industry insight to best practices, mitigate potential risks, and promote better workplace safety.

Sources:
Society for Human Resource Management
CNN Business