Coronavirus (COVID-19): How HR Can Reduce Liability Risk
Author: Kim Freeman, Esq.
After businesses shuttered workplaces due to the coronavirus (COVID-19) pandemic in early 2020, millions of employees abruptly transitioned to remote work. With vaccines rolling out and cases decreasing, many companies now look to return workforces to office settings. But doing so presents new challenges HR professionals must face, including how to reduce the risk of liability related to COVID-19.
During 2020, approximately 1,329 lawsuits were filed against businesses for claims related to the coronavirus, according to the Fisher Phillips COVID-19 Employment Litigation Tracker. About a third of those cases concerned remote work and leave conflicts, issues that are likely to continue throughout 2021.
HR partners play an essential role in protecting employees' health and mitigating litigation risks from COVID-related issues. To lessen legal liabilities, HR should focus on three primary areas:
- Health and safety,
- Leave requests and work from home, and
- Return-to-work policies.
Remember, too, that a year of pandemic-related stress weighs heavily on everyone. Fatigue from mask-wearing and social distancing is natural. Given that these safety measures will likely need to continue for a while, HR must prepare for workplace problems resulting from pandemic burnout. By expecting complaints, short fuses and even depression linked to these stressors, businesses can take steps to prepare and respond by promoting wellness in the workplace and in so doing help protect themselves from legal claims.
Health and Safety
Working to protect and promote employee health and safety not only is the right thing to do, it also is mandated by law. By following legal requirements, HR provides another layer of protection against possible litigation. It's important to remind managers and supervisors, too, that any complaints or concerns about safety protocols should be taken seriously, and employees bringing up such concerns must not face retaliation.
Occupational Safety and Health Act
Employer responsibilities under the Occupational Safety and Health Act (OSH Act) exist to ensure safe workplaces. The law requires employers to keep businesses free of serious hazards. To do that, companies should "ensure proper protocols are in place to ensure a safe work environment, and that means monitoring and responding to the evolving requirements, guidance and best practices," said Tara Burke, an attorney with Jackson Lewis P.C.'s Disability, Leave & Health Management Practice Group.
Ensuring a workplace free of serious hazards for those returning from remote work starts with policies that reflect the Centers for Disease Control and Prevention (CDC) guidance for businesses and employers. This guidance, which the CDC has updated several times, covers length of quarantines, mask recommendations and in-person and virtual health checks.
To ensure OSHA compliance, HR should consider policies and procedures that:
- Outline health screening procedures,
- Detail required personal protective equipment,
- Summarize cleaning procedures,
- Explain what happens if there is an exposure,
- Restrict business travel,
- Provide a framework for accommodations,
- Separate workspaces and require physical distancing, and
- Limit the number of visitors, including vendors and the public.
By addressing these potential issues early, HR can help managers and supervisors understand their roles in ensuring worker safety. With established policies in place, there is less chance of inconsistent application, and that in turn lessens the chance of discrimination claims.
The workers' compensation system in each state typically covers on-the-job injuries or occupational illnesses. Established by statute, workers' compensation generally is the sole recourse for wages and medical coverage for injured employees. Businesses pay into the system, so workers receive prompt compensation and additional litigation is prevented.
When the pandemic began, the question arose of whether workers' compensation would apply to those claiming they contracted COVID-19 at work. Many states have laws that would exclude workers' compensation coverage for COVID-19 because it doesn't fall within the definition of injury or disease that arose from a particular occupation or risk above that of ordinary employment. However, even under existing definitions, some states recognized health care personnel, first responders and food service workers could be covered.
But as the pandemic worsened, some states expanded coverage to include COVID-19:
- Arkansas classified it as an "occupational disease" by executive order.
- California issued an executive order giving a presumption of a compensable claim to workers infected during a specific period.
- Connecticut provided workers meeting specific criteria a rebuttable presumption for a workers' compensation claim if they contract COVID-19.
- Wyoming passed a law giving presumptive workers' compensation claims to employees infected between January 1, 2020, and December 31, 2020.
In many other states, similar changes occurred to create presumptions for workers' compensation for essential workers' claims, including first responders and those in health care.
Because it is unclear whether workers' compensation might be available to workers who become ill with COVID-19 after returning to the office, adherence to safety measures is critical. If there's a possible exposure, HR should consult legal counsel regarding potential workers' compensation claims.
Leave Requests and Work From Home
Although it is no longer mandatory for businesses with 500 or fewer employees to provide paid sick or family leave under the Families First Coronavirus Response Act (FFCRA), Burke said companies should be prepared to respond to employee requests to continue to work remotely or for other flexibility. Many employees continue to face child care, senior care and other circumstances that may present challenges to their traditional work schedule.
And while federal paid leave isn't currently mandated, businesses might want to consider voluntarily providing it to help employees balance ongoing pandemic-related issues. The American Rescue Plan Act (ARPA), signed into law by President Biden on March 11, 2021, provided additional funding for tax credits to covered employers that offer paid COVID-19 leave through September 2021. The law also expanded the reasons under which employees can take the paid leave. For example, employers looking to encourage workers to get vaccinated can provide paid leave under ARPA to enable employees to get the shot and recover from any side effects
Having a flexible approach to leave requests, regardless of whether a leave request includes a request for accommodation, will reassure employees that management is focused on their wellbeing. The same is true for requests to continue remote work temporarily. If there is no demonstratable business reason to mandate everyone return to the workplace at the same time, consider allowing work from home on a case-by-case basis. A formal request process, a decision matrix and a temporary work from home agreement can help HR make it easier to avoid any claims of bias or discrimination.
ADA and Rehabilitation Act Issues
Even in the best of times, employees' claims covered by the Americans with Disabilities Act (ADA) and Rehabilitation Act present challenges. Mishandling an ADA matter can quickly land a company in legal hot water. To mitigate such risk, HR professionals must understand the interplay of the ADA and the Rehabilitation Act with returning to work in the age of COVID-19.
Possible ADA-related issues in return-to-work situations include: reasonable accommodation requests, disability-related inquiries and privacy protections.
When a disabled employee requests an accommodation related to COVID-19, the interactive process is triggered. The employer must provide a reasonable accommodation unless it would pose an undue hardship, such as being excessively difficult or cost-prohibitive. While some employees may want to continue remote work as an accommodation, employers can choose a different accommodation as long as it is effective.
Due to these matters' sensitivity, it is always best to consult counsel before taking any adverse action against an employee who is asking for a disability-related accommodation.
As employees return to the office, employers may make certain limited health-related inquiries and conduct medical exams without running afoul of the ADA, according to COVID-19 guidance from the Equal Employment Opportunity Commission (EEOC). Depending on the business's size, these inquiries may be made via oral screening questions as employees enter the workplace, a questionnaire or an online survey. Employers may also take temperatures or ask employees to self-report temperatures taken before leaving home.
But what about privacy? It's still important, Burke said, and HR should be cautious when asking health-related questions. While the ADA and some state laws restrict the kinds of medical information an employer may obtain, the employer has wider latitude with COVID-19.
"In times like these, it is appropriate to take steps to ensure individuals with COVID-19 symptoms are not in the workplace," Burke said. She added that HR must help employers maintain all information about an employee's illness as confidential medical records.
To help businesses remain compliant with these and other equal opportunity laws, the EEOC has provided FAQs about COVID-19 and the ADA, the Rehabilitation Act, and other EEO laws.
Although it's best to adopt return-to-work policies before employees show up to the office, it's never too late to start. Not only will these policies ease the transition from remote work to worksites as the COVID-19 pandemic ends, they will save time and lessen legal risks in the event of another emergency.
Policies and procedures for a smooth transition back to the office should cover topics such as:
- Communications and recall procedures, and
- Changes in existing policies.
Vaccination of the workforce leads corporate to-do lists, and HR departments should prepare policies for either mandatory or voluntary vaccinations. It may seem that a mandatory vaccination policy would lower possible legal claims, but HR should assess whether such an approach might be more trouble than it's worth. If the business implements a mandatory policy, employees can still request accommodations, leading to decisions that increase risk.
Businesses in most industries can mitigate risks with a policy that "strongly encourages" vaccinations. Yet whatever approach an employer takes with regard to vaccinations, HR performs a vital role in its success. According to Burke, HR - always critical to driving culture - can "build off of what is fundamental to the workplace culture in most organizations - taking care of each other." She added that HR plays three significant roles in supporting a vaccination policy:
- Promoting a "we are all in this together" culture,
- Advancing knowledge, and
- Eliminating barriers.
HR professionals looking to mitigate the risks of COVID-19 can educate employees on the merit of COVID-19 vaccines by using materials from the CDC and other trusted partners. If onsite vaccination is impossible, HR teams need to be the go-to experts on community resources for getting the vaccine. Also, HR must prepare for possible confrontations between employees who disagree about getting the vaccine.
Communications and Recall Procedures
Equally crucial to assuring physical safety is having an understanding of how employees feel about returning to the office, Burke said, adding, "Responding to concerns and building a positive work environment go a long way toward minimizing legal risk in the workplace."
HR teams that communicate with employees build trust and ease concerns about the transition. Lack of communication often leads to disgruntled workers who suffer from morale issues and may bring legal claims.
A great place to start with a clear, systematic and transparent communication plan is recall procedures. Consider sending communications that provide employees with information on:
- The company's commitment to safety (safety and cleaning protocols),
- Return-to-work scheduling (who will return when),
- New policies and procedures (staying home if sick, medical inquiries, mask-wearing), and
- Where to find more information (designate a primary and secondary contact for questions).
For the recall policies themselves, HR partners may reduce the risk of employee claims by adopting non-discriminatory factors for selecting those returning to work first. Additionally, by determining how to handle employees who refuse to return to work, HR can respond quickly and possibly defuse contentious situations.
Changes in Existing Policies
Policies that have served companies well for the past several years may no longer work. Accordingly, HR partners should review existing policies to see what changes are necessary. The policies most likely impacted include:
- Travel - establishing what's essential and what happens in similar emergencies;
- Scheduling - allowing for staggered meals and rest breaks or compressed workdays;
- Telecommuting - including a temporary remote work policy;
- Leave - including procedures for sick time related to COVID-19; and
- Attendance - requiring sick employees to stay home.
Taking a quick trip through the employee handbook may reveal more policies that could use a temporary or permanent update because of the pandemic. Keeping an open mind about the need for possible changes is key.
Proper Planning for COVID-19 Return to Work and Beyond
Feeling overwhelmed? Start with proper planning. Consider using a return-to-work checklist. This resource guides best practices when returning to the office and can help HR partners mitigate risks.
Keep in mind that experts warn another pandemic is probable, unfortunately. HR pros can help companies apply the lessons learned from COVID-19 to future contagious disease outbreaks, as well as to harsh influenza seasons, knowing that employees who feel heard, supported and safe are less likely to pursue litigation against their employers.
Now is also the time to develop or update business continuity plans with policies, procedures and resources needed to respond to future infectious diseases. Doing so further mitigates risks and provides the best chance for a business to protect employees and survive a crisis.