When the COVID epidemic emerged, some business owners chose to err on the side of caution and safety and allow employees to work from home whenever possible. However, even while people aren’t on-site, business owners may still be at risk from employment practices liability (EPL) claims. And as employers bring their people back, there are additional ways they may be exposed.

Whether your workforce is working from home, being reintegrated into the office, or a combination of both, here are some areas of vulnerabilities for employers with regard to EPL matters:

Discrimination

The spread of the coronavirus from different parts of the world has led some to criticize members of certain ethnic groups and blame them for the onset of the virus to the point of harassment. Anti-bullying and anti-harassment training is more important than ever. Companies need to have strong policies about this behavior in their employee handbooks and then back them up with ongoing training and reminders. Document your activity in all of these areas.

In other cases, employees who have been let go or furloughed may claim they were discriminated against due to their age, underlying health conditions, or other supposed susceptibility to the virus. These employees may also state that they weren’t given reasonable accommodation to work from home. You must ensure employment continuity policies are followed consistently and objectively. Make these unfortunate termination and furlough decisions according to those standards, and maintain records about your decision process.

Wage and Hour Claims

Work from home has made it difficult to track hours, limit overtime, and enforce breaks for your non-exempt employees. Update or develop your remote working policies regarding these matters and for appropriate oversight by managers (including their performance evaluation activities). Wherever possible, these should be metrics- and data-driven.

For employees who are reporting to the workplace, you also need a clear policy for how they should account for the time they spend on mandatory health checks (e.g., taking temperatures and other health documentation activity).

Return to Work Requirements

Be sure to follow applicable state and federal laws and standards when it comes to bringing your employees back. Develop a clear policy for timelines and accommodations that will be offered to those who are still concerned about and/or are more vulnerable to the virus. You should also have standards in place regarding COVID testing, vaccinations, taking temperatures, and other matters. Consult with a health care professional and an employment attorney about these policies and be consistent in their application. Don’t prohibit a person from a vulnerable group from coming back to the workplace if they otherwise qualify to return.

Rehiring laid-off and furloughed workers

Hopefully, you’re already in the staffing-up phase if you had to temporarily downsize in 2020. The following policy is important in these situations, too. Beware of the tendency to make any exceptions in your standard procedures regarding re-applying, pre-hire testing, background checks, and all other hiring steps.

Retaliatory Activity

Emotions ran high throughout the pandemic. Some workers may have expressed concern or worse about their company’s COVID policies the personal protection accommodations they were provided. Other employees might be more aggressive than others about utilizing sick leave and FMLA benefits to minimize their risk of their exposure in the workplace. Companies that are perceived to have retaliated against employees for these types of activities could face EPL suits.

 

 

 

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