COVID-19 has injected considerable risk where employment practices liability is concerned. As organizations of all sizes cope with shutdowns, furloughs and layoffs, the legal community is not immune.
As law firms navigate staffing concerns due to COVID-19 restrictions and reduced business, they have found themselves open to claims of discrimination, breach of privacy, failure to accommodate, retaliation and even mental distress. Many of these claims arise from the ebb and flow of revenue as the firm, and its clients, respond to state and local restrictions, rising COVID cases and general economic concerns.
There are steps law firms can take regarding staffing during the pandemic to avoid unnecessary claims.
For those firms that continue to operate from a physical office or have reopened following a shutdown, employers have an obligation to ask certain screening questions of any employee who notes he or she is experiencing health concerns. The Center for Disease Control, as well as the Equal Employment Opportunity Commission have provided guidance, instructing employers to send these employees home to work remotely.
Where remote work is concerned, firm managers must ensure they remain in compliance with all wage and hour laws. Because a staff restructuring might include reducing hours, wage adjustments or other altered work arrangements, the firm must establish clear policies and procedures on these issues and task a manager to monitor all such arrangements. This is particularly crucial with hourly employees, who should not respond to emails, calls or text messages outside of designated work hours.
Employers must also take every precaution to avoid claims of discrimination or retaliation from employees who are furloughed or laid-off. Those employees in protected classes may perceive such situations as targeted discrimination. Clear and objective reasoning for any staffing adjustments should be documented in advance, and firm management would be well served to evaluate their reasoning to ensure no one group or class of employees is disparately impacted – this includes employees who may have alleged unsafe working conditions for firms that kept their offices open during COVID-19.
Mental anguish and distress are an unfortunate reality as social distancing, economic strain, family and health concerns and general stress continue to take a toll on most workers. Employers need to take this to heart when interacting with employees. Ill-considered directives by phone, email, text or video calls may establish a foundation for a claim of mental anguish or abuse by management. Where tight deadlines, overtime or rising demands of the staff are at issue, consultation with the firm’s human resource team is strongly recommended ahead of such decisions.
Finally, the risk of disclosing confidential information—including confirmed or suspected COVID-19 diagnoses—is another potential employment practice liability exposure. All records related to temperature checks, as well as employee health status questionnaires, statements or related notes or documentation regarding employee symptoms, should be kept separate from other employee personnel files.
Many employment practice liability policies use broad language to exclude pandemics. Some may even be updated to address COVID-19 specifically. However, law firms might still face exposure to claims arising from their handling of employee and health compliance management. Firms can limit their exposure by connecting with their insurance agents or brokers to discuss planned or potential employee staffing changes, as well as how the firm is managing the health screenings and documentation of in-office staff.