3 Tips for Avoiding Employment Liability Pitfalls During the COVID-19 Pandemic

Even during the best of times, employment liability presents one of the highest costs of doing businesses for employers of all sizes. During the COVID-19 pandemic, employers have had no choice but to be more vigilant than ever in minimizing all expenses, including employee-related expenses.

As your risk management partner, we offer you the following three tips to avoid costly employment liability traps during the COVID-19 pandemic.

Tip #1 – Avoid Liability in Hidden Areas of Legal Risk

In employers’ efforts to protect their workforces, many employers may separate employees according to risk categories identified by the Centers for Disease Control (CDC), including individuals are older or have other health-related risk factors. To the Equal Employment Opportunity Commission (EEOC), however, the CDC risk categories overlap with legally protected employment classifications. According to recent EEOC guidance, employers may send a general notice to all employees who are expected to return to the workplace (in person), explaining that the employer will consider flexibilities on an individual basis. Employers may not, however, involuntarily exclude older or more vulnerable workers, even where employers’ intentions are for good-hearted reasons, such as protecting high-risk employees.

Tip #2 – Streamline the ADA Accomodations Process

Particularly for positions that require in-person presence in the workplace, employers have reported an increase in requests for disability-related accommodations. Although stress in and of itself is not a disability, mental health conditions (such as depression and anxiety) have been the basis for many employees’ requests for accommodations. According to EEOC guidance, employers may continue to the follow the ADA process, even with the rise of requests during the pandemic. For employers to avoid both unnecessary, costly accommodations and legal risk, a streamlined accommodations process is paramount to address requests for accommodations in a consistent and effective manner.

Tip #3 – Revise the Workplace COVID-19 Safety Plan and Employee Acknowledgment in Accordance with State and Local Changes

An individualized COVID-19 safety plan is key to managing employment liability risk in virtually all areas of employment law. Although many employers have already adopted a safety plan, employers should continuously review and revise their safety plans avoid traps for the unwary. For example, Pennsylvania’s Governor recently released a Telework Order that may impact the safety plan of many Pennsylvania businesses.

If you have any questions about any of the above, please contact Hall Benefits Law. We would love to hear from you, and the HBL team looks forward to serving as your risk management partner!

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Hall Benefits Law, LLC

HBL offers employers comprehensive legal guidance on benefits in mergers and acquisitions, Employee Stock Ownership Plans (ESOPs), executive compensation, health and welfare benefits, healthcare reform, and retirement plans. We counsel a wide spectrum of clients including small, mid-sized, and large companies, 401(k) investment advisors, health insurance brokers, accountants, attorneys, and HR consultants, just to name a few. HBL is passionate about advising clients, and we are dedicated to our mission: to provide comprehensive, personalized, and practical ERISA and benefits legal solutions that exceed client expectations.
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