COVID-19: How businesses can reduce the risk of EPL claims
Organizations should be proactive and have a plan in place to help minimize exposure to employment practices liability (EPL) claims.
Editor’s Note: Read part one of this two-part article series here.
As more employees return to the workplace throughout the country, employers face an increased risk of COVID-19-related employment practices liability (EPL) claims, such as national origin discrimination/harassment, ADA claims, disparate impact claims, retaliation, and wage and hour. Moreover, the economic downturn and high unemployment have exacerbated the potential risks and exposures for organizations for such claims.
Organizations should be proactive and have a plan in place to help minimize exposure to EPL claims. Below are some best practices to consider when creating your plan.
Best practices and return-to-workplace guidelines
First and foremost, follow federal and local laws regarding when to return to the workplace and create a task force to help implement your plan. It is always recommended to consult with outside employment counsel to ensure compliance with all laws and the guidelines and regulations of local and state public health officials and government agencies.
Once the plan and taskforce are in place, next determine the order of employees returning to work. It is important to keep in mind that discrimination laws still apply. In determining the order, consider who needs to be on-site versus who can work remotely. While the CDC has identified certain “vulnerable” populations, be careful not to base decisions on age, pregnancy, disability, or any other status, but keep in mind to engage in the interactive process if an accommodation is requested. Most importantly, be consistent in your decision-making.
What about employees who are being re-hired after being dismissed due to COVID-19?
Companies may have had to make difficult decisions about whether to furlough or lay off staff during the COVID-19 crisis. But as states lift restrictions for certain businesses, it’s important to develop a protocol for employees who are being rehired after being laid off. There is a difference between being furloughed or laid off. Determine whether you will need to complete new hire paperwork and complete pre-hire tests again. Employers in certain industries, such as healthcare, education, and financial services, may be required to re-run background checks for returning employees, depending on federal and state laws. If this is the case for your business, make sure to comply with all laws regarding background checks, including notice and consent requirements.
Another area for concern is when a business rehires staff and payroll cost reductions are implemented. Reducing a salary could lead to age-discrimination claims if older workers are disproportionately affected. As such, make sure to review the impact of any changes being made to ensure there is no disparate impact.
Develop or update remote working policies
This is also an important time to develop or update remote working policies, including any harassment or discrimination policies. Even though people are working remotely, there is potential for an increase in harassment or cyberbullying. Employers should provide COVID-19-specific manager training so that they can learn to identify and address potential issues that may arise. In addition, employers should consider re-circulating anti-discrimination and anti-harassment training for all employees. Also, ensure that all employees, including remote workers, receive a copy of the employee handbook and be familiar with its contents.
Businesses should also make sure to adapt wage and hour policies to address the new exposures, particularly tracking time and recordkeeping while working remotely. Keep in mind the duties test: does exempt status need to be changed? Businesses want to have clear policies in place regarding overtime and “off the clock” work for non-exempt employees. Employers should train supervisors on how to effectively communicate job expectations with all employees and consistently check in with remote employees to discuss concerns, progress, and objectives, just as they would if they were working in the office. In addition, employers should have a consistent and clear policy regarding employee performance evaluations and eligibility for promotions. They should consider setting up metrics to measure all employee progress, including monitor employee output and ensure deadlines and targets are met.
Develop protocols for employees returning to the work location
Every workplace is different, so make sure to customize this to your business and location. Be transparent and communicate your plan to employees. Some things to consider:
- Will you implement COVID testing and temperature taking?
- What is the plan if someone starts to exhibit symptoms?
- What is the plan if someone tests positive for COVID-19?
- Are you coordinated with your building on workplace safety protocols?
As always, make sure that you are in compliance with all laws and regulations that are in place. In addition, ensure that any information collected from employees remains private and confidential.
Communicate effectively with the workforce
Clear, empathetic communication focused on employee safety can help increase employees’ sense of security in coming back to work. Work with your communications staff to ensure this is done.
Employers should consider addressing issues of stigma and bias. Consider employee perspectives and address their concerns. Speak out against negative behaviors and be thoughtful about images you share, and prevent the spread of misinformation.
It is also important to understand an employee’s unique challenges and that returning to the workplace may be difficult. Send relevant communication accurately and often that adapts to employee needs to reinforce support for the employees. Employers should also deliver succinct, targeted information about what employees should know as they return to the workplace. It is important to listen to employee concerns, needs, and challenges and communicate what the company is doing to protect their well-being. By doing so, they are ensuring the financial well-being of their company while helping to mitigate exposure to EPL claims.
Talene M. Carter (talene.carter@willistowerswatson.com) is the national employment practices liability thought & product leader for Willis Towers Watson. Her two-part series focuses on the drivers of loss, the claims arising from COVID-19, and best practices for employers. Part II will discuss what businesses can do to reduce the risk of EPLI claims from COVID-19.
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