When the clock struck midnight and calendars flipped to 2020, COVID-19 was hardly a blip on people’s radars. But by March, the COVID-19 pandemic shocked the world’s consciousness. Today, we all live and work in a world reacting to the deadly menace of a novel coronavirus. And experts say employers should be ready for possible legal challenges arise in the wake of the COVID-19.
There is, however, good news. Multiple COVID-19 vaccines have been formulated and are being administered around the United States. As the pandemic subsides, new problems will arise that affect businesses big and small in the aftermath.
Rapid changes and legal challenges related to COVID-19
Chris Mason is a member at Jennings Strouss & Salmon P.L.C. and counsels employers on labor law. He says that employers should be ready for possible legal challenges and claims that originate from sudden changes in law that occurred during the onset of the COVID-19 pandemic.
“We’ve seen a dramatic shift of employment expectations and employment responsibilities in a realm where we don’t typically see this rapid fire approach to changes. The law moves slowly, even when it comes to employment issues where we generally do expect to see some changes from year-to-year,” says Mason.
Typically, businesses can see possible changes as they work their way through the lawmaking process. This allows employers to evaluate how new legislation may affect their workplace before it is implemented. New regulatory changes have a public notice and comment period before they go into effect.
“I don’t fault federal or state legislators who were trying to adapt expectations in the wake of COVID-19. They had a lot to do in a very short period of time,” says Mason. “But there are some requirements that seem mutually inconsistent at times, and employers had to start complying immediately. When you have all of these factors contributing together at the same time, you have a firestorm of possible risks and mistakes.”
One particularly fraught area when it comes to potential legal challenges COVID-19 is with leave rights. Employers are required to provide limited leave rights in the eyes of the law. Those requirements were expanded in 2020 and add uncertainty to a complex situation.
“An employee might say that they need to stay home to take care of their children because schools are closed, but you know as an employer that schools have reopened. But some schools do have options for students to work remotely. You can see how all these factors have created an absolute cluster for employers to navigate through,” says Mason.
It can be tempting for employers to make exceptions for certain employees, but that may leave ownership open to possible discrimination claims. “No good deed goes unpunished, as they say. We’ve seen employers who make an exception here or there and become worried that they might get taken advantage of, so they stop. But once they’ve provided an extra benefit to one employee, and not another, they’re opening the door to possible discrimination claims, especially if the person who didn’t get the extra benefits is of a different age, gender, or race,” says Mason.
Returning to business as usual
As COVID-19 vaccinations become more widespread, consumer confidence will increase and some version of normalcy will return. How can businesses prepare for welcoming all their employees back into the workplace? Mason suggests that employers address the big questions ahead of time in writing.
“Specifically, how is telecommuting working? Are you making sure to properly track hours to avoid potential overtime issues? Are you aware of the potential cost to employees who have to telecommute? Are they having to pay for extra computer equipment or services?” Mason says.
These are just a few of the issues employers should be considering—if they haven’t already. But one of the most pressing questions that employers need to be ready for is whether vaccinations will be a requirement as they become more widely available over the coming months.
“It’s a common question we’re getting right now: can we and should we require the COVID-19 vaccine? Some employers aren’t taking a position, while other employers are articulating that they’re going to require it. Interestingly enough, I think some of the biggest companies out there have taken the position that they’re going to encourage it, and may even incentivize employees to get the vaccine rather than to mandate it,” Mason says.
There is no easy solution to the vaccination question, but employers should have an answer ready for employees. Being prepared and consistent are the easiest ways to avoid potential lawsuits in the wake of the COVID-19 pandemic.
