Although traditionally, employers have only rarely been found liable for employee deaths resulting from workplace conditions, the coronavirus is likely to turn that trend on its head. If employers don’t follow the guidance from federal and state government agencies on limiting the spread of the coronavirus, courts may find them liable.

Already, more than 500 employment-related complaints involving the coronavirus have been filed against companies, according to the COVID-19 Employment Litigation Tracker compiled by law firm Fisher Phillips. But these cases are about more than just coronavirus exposure: they also involve wage and hour issues, discrimination claims, and employee privacy lawsuits resulting from employer changes in response to COVID-19.

How Employers Can Reduce the Risk of Employee Coronavirus Lawsuits

To mitigate the risk of receiving an employment-related COVID-19 lawsuit or claim, employers can take a number of steps.

• Create a comprehensive return-to-work safety plan. Make sure the plan includes measures to protect staff from exposure as well as reminders to follow social distancing guidelines and to use proper hygiene, including handwashing, whenever they’re in the workplace. Communicate the plan through policy, training, online reminders, and prominently displayed safety posters.
• Check relevant policies to ensure they are up to date. The policies to review include those involving remote work, anti-harassment, anti-discrimination, anti-retaliation, the Family and Medical Leave Act (FMLA), policies regarding reasonable accommodations under the Americans With Disabilities Act (ADA), and the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act under the Families First Coronavirus Response Act (FFCRA). Continuously monitor federal, state, and local labor laws for any changes.
• Create a checklist for posting requirements and other labor law notices. Be sure that you have posted or provided electronic copies or hard copies of all labor law posters to remote employees. Keep a log of where you have sent materials to show compliance in the event of an inspection. Don’t forget to include new posters required by your state or locality or by the federal government, such as the new FFCRA poster.
• Train HR teams and managers on their responsibilities and employee rights. Make sure your HR professionals and managers are aware of any changes to policy and the appropriate steps to take when employees make claims or requests under the policies, particularly regarding remote work. Prepare HR and supervisory employees to address complaints about workplace safety and concerns about COVID-19 precautions.
• Follow the law when implementing reductions in force and other layoffs. If your company is making changes to the workforce as a result of the coronavirus pandemic, make sure you give employees the appropriate notice under the federal Worker Adjustment and Retraining Notification (WARN) Act and state equivalents.
• Set clear expectations, in writing, for hours worked for remote employees. Stave off claims for unpaid work from nonexempt employees who are working from home by specifying expectations for adhering to work schedules, requesting permission before working overtime, and documenting work hours.
• Establish a policy for handling positive or presumptive COVID-19 diagnoses. Decide how you will handle an employee’s report of an actual or a possible COVID-19 infection, including how you will report the employee’s status to authorities in compliance with your state and local laws, how you will comply with guidelines for quarantining all potentially affected employees, and how and when you will allow affected employees to return to work. Be sure to document all steps that you take.

• Ensure compliance with privacy laws and rules. If your return-to-work plan includes conducting any type of health screenings or testing, including temperature checks, make sure that you have a process in place that ensures that all records are kept confidential.

Taking these steps, and ensuring compliance with all new labor law posting requirements, can reduce the risk of facing a coronavirus lawsuit and, if a lawsuit is filed, limit your company’s potential legal exposure. For additional guidance on new posting requirements resulting from the coronavirus pandemic, check out our website or give us a call at 1-800-322-3636.