By: Carl Habekost
The COVID-19 pandemic has ignited a windstorm of legislation and regulatory enforcement measures. The COVID-19 laws, regulations, and recommendations seem to change daily, thereby presenting a legal minefield for employers to negotiate. The list below provides food for thought and identifies the top 5 mistakes employers should avoid during the COVID-19 pandemic.
Mistake Number 1: Not Being Prepared with a COVID-19 Response Plan
A thorough COVID-19 response plan serves as a useful resource tool for both employers and employees. In fact, some states (Michigan, for example) require a written COVID-19 response plan by law. As we always advise our clients, policies designed to protect the health and welfare of employees also usually serve to meet the compliance requirements of various laws and regulations. A well-designed COVID-19 response plan protects the health of employees while also assisting employers to maintain operations during an outbreak of the virus in the workplace.
Risk management requires thoughtful employers to develop and implement a thorough COVID-19 response plan to ensure the future of the company. Such a plan includes both proactive safety measures such as social distancing, facial covering policies, cleanliness and sanitary policies, temperature taking as well as responsive policies such as deep cleaning action plans, quarantine and time away from work policies, and other measures. At the core, a COVID-19 Response Plan has the twin goals of protecting the health and welfare of employees as well as protecting the ongoing viability of the business and income stream for the employees. Employers operating without a COVID-19 response plan are taking a huge and unnecessary risk.
Mistake Number 2: Providing Remote Work for Employees Without a Written Remote Work Policy
The COVID-19 pandemic has brought remote work into the mainstream. Due to the pandemic, federal, state and local governments have issued laws and recommendations advising employers to provide remote work for employees if at all possible. Therefore, employers should develop and implement remote work policies to avoid pitfalls associated with various workplace laws and regulations. Further, the remote work policy should address the specific needs of each organization. Employers must carefully review state and federal wage and hour laws to ensure their plans are compliant. Employees must be trained to log remote work hours appropriately. Companies must specifically address the issue of confidential information and data privacy. The remote work policy should clearly enunciate performance, production, and availability expectations for employees who work remotely to ensure that the company’s goals continue to be met. The agreement should also identify an anticipated end date or identify if remote work will become the norm in the future. Finally, the remote work agreement should be signed by each employee and his or her manager.
Mistake Number 3: Failing to Understand Potential Disability Accommodations
On September 8, 2020, the EEOC issued a substantive update to its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”.
Employers and HR professionals should be aware of the contents of the EEOC update. Depending on the circumstances, employers may need to provide reasonable accommodations that offer protection to individuals whose disability puts them at a greater risk of complications associated with COVID-19. This might include employees with certain pre-existing mental health conditions who have increased anxiety while coping with the COVID-19 pandemic. On that basis, engaging in the “interactive process” is essential. Employers who fail to understand the current legal environment in that regard could unwittingly expose their company to legal liability. While guidance on this topic continues to evolve, just like all laws and regulations associated with COVID-19, the recent EEOC update provides a useful snapshot to employers of important issues involving disability accommodations.
Mistake Number 4: Not Providing Recorded Training on COVID-19 Issues for Employees
Protecting the health and welfare of employees is of paramount concern as employers develop safety policies regarding the COVID-19 pandemic. As such, employers must train employees on safety protocols and document the training. The best practice is to make the training available in digital format so employees can continually reference the training materials and safety policies. Further, employers can electronically document that the training was performed. Training on COVID-19 issues should cover concepts such as sanitation in the workplace, social distancing, required Personal Protective Equipment (PPE) such as facial coverings, and other procedures and protocols based on local, state and federal law. Local and state limits on indoor gatherings makes digital training a best practice.
Mistake Number 5: Ignoring Non-COVID 19 Legal Requirements and Developments
COVID-19 developments, rules, regulations, and new laws have been overwhelming. Naturally, the intensity required to keep up with the developments causes employers to neglect or forget other legal requirements and legal developments. For example, OSHA training requirements and safety regulations have continued during the pandemic. Employers still have an obligation to comply with non-COVID-19 safety requirements. Further, a landmark United States Supreme Court decision in Bostock v. Clayton County was decided during the height of the pandemic. The Bostock case deals with discrimination under Title VII of the Civil Rights Act regarding termination of an individual based on sexual orientation and identity. Employers must remain diligent to update policies based on new legal developments and continue to comply with existing policies and law despite the ongoing COVID-19 pandemic.
Please contact a member of our Labor and Employment section with questions or concerns or further information.