From new legislation to existing statutes, nearly every aspect of the COVID-19 pandemic has made small businesses increasingly vulnerable to employment claims, and that could be the final straw to whether or not your company survives.

But there is some good news: employment claims are preventable!

To help you avoid a costly and consuming employment lawsuit, consider the following claims. Then, assess your business practices and make any necessary adjustments to ensure you are compliant with applicable laws.

Workplace Health and Safety Claims
  • “This workplace is unsafe and has caused sickness (and/or death) due to COVID-19.”
  • “The company failed to take appropriate measures to reduce COVID-19 exposure and spread (hand-washing stations, sanitizers, masks or adequate protective gear).”
  • “We are unable to social distance at work due to the nature of our jobs.”

To prevent workplace health and safety claims, conduct a risk assessment and implement the proper workplace safety controls to keep your employees safe. Document those controls and any training you provided.

Leave (FMLA and FFCRA) Claims
  • “I was wrongfully denied expanded leave.”
  • “Although I was offered unpaid leave, I should have been offered paid leave per the Expanded Paid Sick Leave Act.”

To prevent leave claims, consult with legal counsel or your outsourced HR provider to update and implement leave-related policies. Consider training your managers and supervisors on all applicable policies and laws, as they will be dealing with employee leave requests firsthand.

Wage and Hour Claims
  • “Due to salary (or hour) reductions, I no longer qualify as exempt. However, last week I worked more than 40 hours and now my employer is refusing to pay me for overtime because I’m supposedly ‘exempt’.”

To prevent wage and hour claims, you first must provide a time keeping system that is accessible to employees, whether working remotely or otherwise. Be sure employees are trained to always clock in and out to properly record hours. Then you must evaluate exempt status for employees who may have been affected from recent salary or hour reductions. Make adjustments, where necessary.

Discrimination Claims
  • “I was laid off because of my (insert protected class: race/ gender/ age/ religion/ disability).”
  • “My employer failed to accommodate my request to work from home due to COVID-19.”

To prevent a discrimination claim, be careful and objective when making any employment decision. In the case of layoffs or furloughs, conduct an analysis to ensure there is no disparate impact. Document reasons for your employment decisions, including any analysis, and retain them in your employment records.

Wrongful Termination Claims
  • “I was fired for complaining about lack of personal protection equipment (PPE).”
  • “I was fired for complaining about coworkers with COVID-19 related symptoms coming to work.”

To prevent a wrongful termination claim, proceed carefully when receiving any employee complaints and conduct a thorough investigation. Maintain detailed records of employee complaints, including what was found in the investigation and the reason for termination.

Disclosure of Confidential Information Claims
  • “My boss told my coworkers I tested positive for coronavirus.”

Although employers are temporarily allowed to take temperatures of employees due to the community spread concerns acknowledged by the CDC, they cannot share the personal information of the employee per the Americans with Disabilities Act (ADA). To prevent a disclosure of confidential information claim, simply say that “possible exposure has occurred in the workplace” and avoid giving specifics to identify the individual. Also, be sure you store employees’ medical information separately from their personnel files.

Conclusion

While this is just a small sample of claims that may arise from COVID-19, it’s important to be aware of potential issues and take the steps to minimize your exposure. For help or questions, please contact our HR experts at HR@stratus.hr.

Sher Shields

Author Sher Shields

With an MBA and an HR background, Sher helps with all sorts of marketing odds and ends such as articles, newsletters, emails, blogs, website content, ads, and more. When not juggling her four young children, Sher enjoys volleyball, basketball, racquetball, or anything else with "ball" at the end.

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