As workers are encouraged to return to the office, employers are walking a tightrope fraught with liability and risk. In fact, big insurers like Chubb, AIG and Travelers are bracing for an onslaught of claims related to employment and labor lawsuits as workers head back to the office.
As employers continue to grapple with the fallout from the pandemic, the immediate threat of COVID-19 litigation looms large. To help you stay one step ahead, the Jackson Lewis COVID-19 Employment LitWatch tracks complaints filed in federal and state courts nationwide that allege labor and employment law violations related to COVID-19. And Covid-related litigation and complaints have steadily risen throughout the pandemic.
As further evidence of this trend, the U.S. Equal Employment Opportunity Commission data shows an uptick in disability discrimination claims filed with the agency during the pandemic.
So what is an employer to do in order to protect against litigation? Is management doing enough to keep their employees and customers safe? Are they managing privacy concerns, employee medical choice and the countervailing employee relations issues between those who are vaccinated and those who are not?
Here are three important steps for management to take:
- Management needs to evaluate whether they’re discriminating against protected classes of employees when they make decisions about who to bring back to the office first. The notion that certain individuals or classes of people or even individual employees are being favored or disfavored over others, immediately should raise should raise concerns. And as employees are called back into the office in greater numbers, they may also have a strong argument.
- When employees come back, companies need to make sure it’s a safe environment. That raises additional questions about whether workers should wear masks, or if a company should require a Covid-19 vaccination. Although it’s legal for employers to mandate vaccines for workers, it may not be advisable because of downstream liability if an individual were to have a serious reaction to or complication as a result of the vaccine. On the other hand, some employees or customers may demand businesses require vaccines.
- When it comes to disability discrimination claims, Travelers said it suspects accommodation conflicts are driving the increase. For example, if an employee asks for the ability to continue to work from home because he has a condition that puts him at a heightened risk if he contracts Covid-19. This situation could also arise if an employee says she can’t take the vaccine because of an allergy. If the employer mandates it anyway, she may say her employer discriminated against her because of it. If the request is denied, the employee may sue for the accommodation.
Bottom line: make sure you’re not discriminating against protected classes of employees when you make decisions about who to bring back to the office first, ensure your workplace is a safe environment, and be as flexible as you can be in granting requests for accommodations.
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