As South Carolina businesses begin working toward resuming their normal operations, the risk of facing litigation related to the COVID-19 crisis remains high. Now that most restrictions have been lifted, infection rates are once again rising; and, while Governor McMaster has signaled that he does not intend to impose another “home or work” order based on the current data, businesses (and consumers) must continue doing their part to mitigate the spread of the virus.
For employers, the risk of workplace exposure is not the only litigation-related concern. Litigation risks (i.e. discrimination, harassment, and equal pay claims) that existed before the pandemic has not gone away and statutes enacted during the pandemic have afforded new and significant rights to workers. With this in mind, South Carolina employers need to take a broad-based approach to risk mitigation as they operate during the COVID-19 crisis, and must avoid overlooking issues – new or old – that create the potential for liability exposure.
How Can Your Company Mitigate Its Risk of Employment Litigation During the COVID-19 Crisis?
When it comes to mitigating risk during the COVID-19 crisis, there are several steps that employers can – and should – take to minimize opportunities for virus exposure, observe their employees’ statutory rights, and react promptly in the event that an issue arises. Here are five tips from the employer defense attorneys at Gignilliat, Savitz & Bettis, LLP:
Tip #1: Make Sure Your Company has Clear Policies and Procedures, and Make Sure They are Followed
In general, employers should have clear policies and procedures in place that establish company-wide standards and that serve as the foundation for the company’s broader compliance and risk mitigation efforts. With regard to the COVID-19 crisis, in particular, employers will generally be well-advised to adopt additional policies and procedures that address issues such as:
- Implementation of social distancing practices and other measures to prevent the spread of COVID-19 as appropriate
- When employees who have experienced symptoms of COVID-19 may (or are required to) take time off or work remotely
- Rules and requirements for working remotely and protecting sensitive data
- Rules and requirements for entering the workplace and for returning from time off due to COVID-19 exposure
- What will be done in the event of a potential COVID-19 exposure incident in the workplace
These are just a handful of examples. While these are uncertain times, employers can take steps to mitigate the uncertainty for themselves, their employees, and their customers, and doing so will be essential for as long as the risk of COVID-19 exposure remains.
Beyond simply adopting appropriate policies and procedures, another critical aspect of risk mitigation is ensuring that these policies and procedures are followed. To this end, employers should conduct training, post information in their facilities, and undertake other measures to ensure that all employees understand their rights and responsibilities.
Tip #2: Apply Policies and Impose Discipline Consistently Throughout Your Company’s Workforce
When issues arise, employers must ensure that their management personnel apply the company’s policies and impose discipline in a consistent manner. Disparate treatment of similarly-situated employees can lead to allegations of discrimination or harassment; and, absent clear (and documented) justification, it can present a liability risk. As with all employment-related decisions, decisions pertaining to COVID-19 must not be based on employees’ protected characteristics, and they must not be used as subtexts for undertaking prohibited acts.
Tip #3: Investigate Employee Claims and Complaints Promptly, But with Due Consideration for Employees’ Statutory Rights
In the event an employee files a claim seeking statutory benefits or a complaint alleging either discriminatory treatment or failure to prevent COVID-19 exposure, a prompt response is required. Employers must ensure that they have a clear understanding of their employees’ statutory rights (i.e. their right to paid, job-protected leave under the Families First Coronavirus Response Act (FFCRA)), and they must investigate all claims and allegations in good faith.
When evaluating employees’ claims, employers must be careful to ensure that their efforts do not put them at risk for additional liability. For example, if an employee seeks to take protected leave under the FFCRA, the employer can take steps to verify the validity of the employee’s claim, but it must also be extremely careful to avoid violating the Americans with Disabilities Act (ADA) and other statutes. These are complicated matters that are best handled with the advice and representation of an experienced employment lawyer.
Tip #4: Thoroughly Evaluate All Potential Claims Prior to Taking Disciplinary or Defensive Action
In the same vein, prior to taking disciplinary action against an employee or taking defensive action in response to allegations of wrongdoing, employers must ensure that they have thoroughly evaluated all potential claims that are on the table. This includes not only claims that may be asserted by the affected employee, but similar claims that other employees may assert as well. Even under normal circumstances, dealing with employment-related disputes involves unique dynamics and presents unique challenges. With COVID-19-related issues having a relatively high likelihood of affecting multiple employees, employers must be especially cognizant of the total liability risks involved.
Tip #5: Work with Your Company’s Employment Law Counsel to Find Pragmatic and Cost-Effective Solutions
With all of these considerations in mind, during the COVID-19 crisis, employers need to address their liability risks proactively. They need to adopt and implement appropriate policies and procedures, and it is imperative that company leaders have a clear understanding of what they can, should, and need to be doing during the pandemic. We recommend that all employers work with their legal counsel to find pragmatic and cost-effective solutions that are focused on mitigating their risk while also providing adequate protection for their employees.
Speak with an Employment Lawyer at Gignilliat, Savitz & Bettis, LLP | South Carolina’s Labor & Employment Law Firm
Gignilliat, Savitz & Bettis, LLP is an employer defense law firm located in Columbia, South Carolina. If you have questions about what your company needs to be doing during the COVID-19 pandemic, we invite you to get in touch. Call 803-799-9311 or contact us online to arrange a confidential consultation.