Small and medium-sized businesses (SMBs) could face a higher risk of discrimination claims and employment practices liability (EPL) lawsuits when their employees return to work once COVID-19 restrictions are lifted.
There are multiple factors exacerbating EPL risk amid the coronavirus pandemic. Many SMBs were forced to close their doors for two months or longer during government-mandated lockdowns, and, as a result, lots of workers were furloughed or even laid off. For those businesses that managed to survive the temporary shutdown, many have adopted phased re-opening plans based on government requirements and advice, meaning they haven’t necessarily brought back all staff or resumed all operations straight away. This leaves some employees out of work for longer than others, giving rise to potential EPL lawsuits around discrimination and the methods used to decide when and which employees to call back. It is very important that age, race, gender, disability and parental status not be used in that decision process to avoid disparate discrimination among the workforce.
With COVID-19 being a public health crisis, SMBs also have to contend with the possibility that an employee falls sick with the virus. Even if the employee self isolates appropriately and recovers at home, there’s a heightened risk of inherent discrimination or retaliation from co-workers who “don’t want to catch COVID” from that employee when they return to work. How well SMBs handle situations like that will determine how likely they are to experience a costly EPL claim.
Under the circumstances of the coronavirus pandemic, the United States Equal Employment Opportunity Commission (EEOC) has made it lawful for an employer to medically screen an employee before they come on to the premises, as long as any tests are “job related and consistent with business necessity,” and all medical files are kept confidential. Some employers are using testing as a way to reassure employees that it’s safe for them to re-enter the workplace, but again, they need to be careful in how they conduct these tests.
Heather Schaaf (pictured), Underwriting Director, Executive Liability at Burns & Wilcox, explained: “Employers must think about how they’re carrying out any type of medical screening, so that they’re protecting their employees’ privacy. It’s very obvious if you have a line of employees showing up for a shift at the same time, you take everyone’s temperature, and then you send one person back to their car instead of allowing them into the building. Everyone will know that employee potentially had a high temperature and could possibly be sick. When that employee returns to work after two weeks of self-isolation, co-workers might not want to work with that employee because they think that person is high-risk and they’re afraid of catching COVID-19. There are a whole lot of issues going on here all at the same time.”
As well as discrimination against those who have been diagnosed with or have experienced symptoms of COVID-19, companies also face heightened risk of racial discrimination in the workplace. Throughout the pandemic, countries around the world have reported a disproportionate burden of coronavirus-related illness and death among racial and ethnic minority groups. Again, this could lead to heightened risk of discrimination and abuse among co-workers.
Overall, the development of EPL risk resulting from the COVID-19 pandemic will be a drawn-out process, according to Schaaf. As the economy starts picking up and more businesses reopen, new workforce-related issues will undoubtedly pop up.
Schaaf commented: “Companies need to make sure that their HR is doing everything they can to keep communication open with their employment force to help prevent serious EPL claims. I believe, on the EPL side, that we’re going to see a huge surge in the number of claims and possibly class-action claims because of the sweeping effects of this pandemic. They might not all be expensive claims, or higher than average claims, but there could potentially be exponentially more than we have seen over the last few years – and that’s quite worrisome.”
“If an employee has been furloughed, it is a best practice for employers to treat them like new employees when they re-enter the workforce,” she continued. “They should do all of the typical onboarding again, making sure they have a copy of the employee handbook, the HR policies and so on. Another issue we are starting to see now that various parts of the country are opening back up is some employees that were furloughed or telecommuting are refusing to come back to work because they don’t think it’s safe enough. Companies need to make sure they’re letting their employees know that they have appropriate cleaning policies in place and that employee safety is a top priority. There are a variety of things they can do to make sure they’re not contributing to the spread of COVID-19.
“It’s a tricky situation. What do you do if you’ve reopened, but half of your employment force doesn’t want to come back? That has to be treated with care. Maybe you were letting employees work from home and telecommute during this time. If so, perhaps you should have that interactive HR process with them, and possibly consider it an accommodation to let them keep working from home until they feel safe enough to come back into the office.”
