COVID-19 has sent many employers into a workforce management tailspin. Laws, regulations, and recommendations change daily, and as the pandemic continues to affect the workplace, the risk of legal complacency increases. The list below identifies the top 10 mistakes for employers to avoid during the COVID-19 pandemic.

Mistake 1: Failing To Prepare and Update a COVID-19 Response Plan.

Not only are COVID-19 response plans legal requirements in some states (such as Michigan), but they also serve as a useful resource for both employers and employees. The Occupational Safety and Health Administration (OSHA) can cite employers for recognized hazards if they fail to prevent or abate them. Businesses that operate without a well-developed response plan will be exposed to several legal and business risks. Along with those risks, businesses jeopardize their goodwill and reputations for failing to protect their employees. A proper response plan can help employers maintain operations while protecting their workforce and providing useful information to their employees to help prevent the spread of COVID-19 in the workplace.

Mistake 2: Failing to Take Affirmative Steps during the Onboarding Process to Avoid Liability.

COVID-19 has impacted hiring and onboarding processes. Notable changes include candidate interviews by phone or video conferencing and the ability to complete Form I-9 employment verifications electronically. Employers should clearly articulate job duties and protect themselves during this process. Employers must also anticipate potential problems and address liability concerns in offer letters and pre-employment screening. While waiver agreements between employers and employees are disfavored and often unenforceable, there are several other options employers should consider using.

• Arbitration Agreements: An employer can implement an arbitration agreement to avoid the time, expense, and publicity associated with litigation in the court system. These should be carefully drafted to minimize the appearance of coercion and avoid arguments of unenforceability. However, employers must avoid mistakes such as placing these solely in an employee handbook, which is not a binding contract. Because arbitration is a matter of consent, a separate document can prove vital for enforceability.
  
  
• Class and Collective Action Waivers: An employer can also include a class/collective action waiver in an arbitration or other employment agreement. In Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018), the Supreme Court held that employment arbitration agreements containing class action waivers are enforceable and did not violate the National Labor Relations Act. These provide employers with substantial protection against class and FLSA collective lawsuits.
  
  
• Agreements to Shorten Limitation Periods: Depending on the circumstances, employers can reduce the statute of limitations period for an employee to sue. In turn, this may reduce the number of employees who bring actions against employers and can substantially limit exposure. To ensure enforceability, employers should verify if their jurisdiction permits the shortening of the limitations period, make sure the provision is not unconscionable, and ensure the provision is conspicuously placed so the employee knowingly and voluntarily agrees to it.
  
  

Mistake 3: Not Providing Training in a Recorded Format for All Employees to View on Demand.

Employers must educate their employees on the development of new protocols before reopening. In fact, in states such as Michigan, employers are required to roll out COVID-19 Preparedness Training to all employees. Training should cover concepts such as sanitation in the workplace, social distancing, required Personal Protective Equipment (PPE), and other procedures and protocols based on state and federal requirements. Employees must also be educated regarding the fundamentals of assessing risk while understanding the procedures on how to address a suspected case and even rumors of a suspected exposure. The best practice, especially in light of many statewide limits on indoor gatherings, is to make training available digitally so employees can continually reference training materials.

Mistake 4: Allowing Telecommuting without Having Proper Policies and Systems in Place.

Employers need to implement a remote work policy that addresses the specific needs of the organization. Employers must carefully review state and federal wage and hour laws to make sure their plans are compliant. Workers must understand how to log telework hours, and organizations must specifically address confidential information and data privacy. Employers should also identify if there is an anticipated end date in a remote policy or if remote work will become the norm in the future. Finally, the remote work policy should clearly set forth performance, production, and availability expectations for employees working remotely to ensure company goals continue to be met at all times.

Mistake 5: Ignoring Non-COVID Legal Developments.

With all the chaos caused by the pandemic, it’s easy for employers to avoid addressing other legal developments. For example, in the landmark Bostock v. Clayton County decision, which was decided during the height of the pandemic, the United States Supreme Court held that an employer who fires an individual for his/her LGBTQ+ status violates Title VII of the Civil Rights Act of 1964. Employers must remain diligent to update their policies and train their employees on these new legal developments.

Mistake 6: Allowing Employees to Receive Sick Pay or PPP Funds and Unemployment Simultaneously.

During the period for enhanced unemployment benefits, unemployment fraud drastically increased. In addition, there are oversights that can expose both employers and employees to unintended liability. Employers and employees are prohibited from double dipping to collect unemployment. Employees must report all wages earned when certifying for unemployment. Moreover, self-employed workers who applied for unemployment and the Paycheck Protection Program (PPP) and received a PPP loan are required to withdraw from unemployment. Simply put, there are substantial risks for those individuals and organizations that try to game the system.

Mistake 7: Not Considering Retaliation and the National Labor Relations Act When Making Termination and Return-To-Work Decisions.

Although the CDC has identified the high-risk-for-severe-illness population and recommended employers protect these employees, organizations must be wary about how they make employment decisions with this information. An employer cannot exclude the employee “solely because the worker has a disability that places him at a ‘higher risk for severe illness’” if the employee contracts COVID-19—unless the employee’s disability poses a “direct threat” that cannot be eliminated or reduced by reasonable accommodation. Employers should follow the same procedures they would in reductions-in-force situations, such as statistical analysis to avoid disparately impacting protected classes.

Likewise, the National Labor Relations Act provides all workers—regardless of union membership—with a job-protected right to engage in "concerted activity for the purpose of mutual aid or protection." The NLRA only protects group-based activities, not individuals seeking protection solely to protect themselves. Employers must consider this to avoid a potential labor charge related to employees who participate in a work stoppage based on a good-faith belief that their working conditions are abnormally dangerous.

Mistake 8: Failing to Understand Federal and State Leave Laws and How These Overlap.

Federal and state leave laws are difficult to navigate. What’s more, the country is entering a new school year, forcing many to stay home and care for children who are learning remotely. This is causing additional headaches for employers and employees alike. Regardless of the issue, organizations must address when certain laws apply, how they overlap, and how business goals can be met under these circumstances.

Mistake 9: Ignoring Potential Disability Accommodations.

COVID-19 employment litigation is skyrocketing and is only expected to increase as the pandemic rages on. One of the emerging trends involves the ADA. Depending on the circumstances, employers may need to provide reasonable accommodations that offer protection to individuals whose disability puts them at a greater risk of complications associated with COVID-19. This includes employees with certain preexisting mental health conditions who have increased anxiety while coping with the COVID-19 pandemic. On that basis, engaging in the interactive process to determine whether the condition is a disability and exploring potential accommodations are critical to avoid liability.

Mistake 10: Disregarding the Importance of Public Relations and Social Media for Reputation Purposes.

Business reputation is more critical than ever in the digital world. One bad incident can go viral and corrode an organization’s goodwill. Not only are we currently faced with the COVID-19 pandemic, but the nation is also engaged in a long-overdue battle with systemic racism and inequality. Employers who fail to protect their workforce are facing harsh social media backlash. Employers must establish their commitment to the safety of their employees and adopt policies and protocols that demonstrate their intentions to put employees first. Likewise, employers who are not publicly addressing their commitment to diversity and inclusion and taking internal steps to meets these goals are being called out on social media for their failure to learn and grow during this momentous time. Although there may be greater initial expenses, taking action now can prevent substantial liability in the future.

Dinsmore is continually monitoring and reporting on COVID-19 developments and will keep posting as more information becomes available. Organizations are encouraged to review their business strategies and consult counsel for any business or employment related questions.