Posted on July 20, 2020 By guest blogger Donna Marcus, who helps youth organizations with their insurance and risk management portfolio. The author is not an attorney and is not affiliated with Taylor English Duma LLP. This posting does not constitute an endorsement by Taylor English of the author or of any related entity.
The world has changed dramatically in just a few short months. The true impact of COVID-19 will not be known for years to come. As business owners all over the world struggle to re-open, it is important that we continue to focus on protecting those businesses against a variety of negative forces.
Unsurprisingly, the uncertainty wrought by COVID-19 has left employers at an increased risk of exposure to employment-related claims alleging wrongful termination, discrimination, retaliation and many others. Accordingly, your insurance portfolio should include Employment Related Practices Liability. Examples:
Wrongful Termination Claims:
One example is a claim that the employee was terminated for complaining about a lack of personal protective equipment. Another example would be a claim that the employee was terminated for lodging a complaint about co-workers with COVID-19 symptoms reporting to work.
Numerous federal and state laws protect employees from discrimination based on protected class characteristics. Laid-off or furloughed employees may bring claims under federal and state anti-discrimination laws, challenging the purported reason they were selected for an adverse employment action. Employers should be careful to use objective means when deciding which employees to lay off or furlough.
There have already been numerous claims that allege retaliation for objecting to unsafe working conditions and exposure to individuals with COVID-19 symptoms in the workplace. Other retaliation claims may arise out of an employee complaint that the employer wrongfully denied a request for leave.
These are just a few examples of the most common types of claims that may arise as a result of COVID-19. It is imperative that employers are aware of these potential issues and proceed accordingly. Moving forward, employers should consider the following:
- Develop a return-to-work plan that contemplates federal and local safety guidance (e.g., CDC, OSHA and state health authorities) on personal protective equipment, workspace hygiene, social distancing measures and many others.
- Consult with legal counsel when implementing (or updating) policies and procedures to ensure compliance. Ensure counsel is also present when undergoing recall, rehire and job offers, as this stage is the epicenter for multiple employment-related claims.
- Ensure that those policies and procedures are implemented in a fair and equal manner.
- Ensure proper communication to all employees, particularly the managers who will be responsible for implementation.
- Maintain the confidentiality of all medical-related information provided by employees in compliance with federal and state guidance.
- Train managers and supervisors on new policies and procedures drafted in the wake of COVID-19.
- Regularly monitor new federal, state and local guidance, as well as legislative enactments.
The most important practice in insulating your business from an employment-related claim is documentation. Extensively documenting the employer’s reasoning behind their employment decisions can be the difference between a successful defense and a costly judgment.
Contact Donna Marcus at Phoenix Associates Insurance Agency today for more risk management guidance. She can be reached at 770-973-4000 – or- firstname.lastname@example.org. Phoenix Associates Insurance Agency has been providing specialized insurance programs to Pre-Schools and Private Schools for over 40 years and we are committed to helping those in the education community.
The author is not an attorney and is not affiliated with Taylor English Duma LLP. This posting does not constitute an endorsement by Taylor English of the author or of any related entity.