HR Strategies for Mitigating Risk in a Post-Shutdown Workplace
As businesses reopen, employers and HR professionals are confronting unprecedented workplace changes and an evolving patchwork of new laws, regulations, and guidance that demand compliance. New workplace safety standards, leave entitlements, discrimination concerns, and budget constraints are only a few of the emerging sources of potential legal risk to employers.
Fortunately, HR professionals can avoid and mitigate these risks without reinventing the wheel. Instead, they can rely on fundamental best employment practices, and adapt those practices to manage evolving legal obligations and circumstances. Below are examples of how to address some of these new challenges with basic best practices to implement:
Employment laws and guidance are changing rapidly, and changes will likely continue as reopening exposes unexpected challenges. Without up-to-date information, even the most well-intentioned compliance efforts can create legal risk.
Ideally, HR professionals should seek qualified legal advice to navigate new areas of law, particularly when addressing complex or fact-specific issues. But for general guidance and staying informed about changes broadly, HR professionals can register for email alerts from agencies like the Department of Labor, the Equal Employment Opportunity Commission, the Centers for Disease Control, and their state counterparts. Some agency websites also offer regularly updated Frequently Asked Questions that answer practical questions in plain English.
Address Accommodation Requests with Care
While reasonable accommodation requests always require individualized assessment and good-faith dialogue, amplified focus on employees’ medical vulnerabilities have further complicated employers’ obligations. Among the new considerations, employers may now need to provide reasonable accommodation to employees with certain high-risk medical conditions, even if the condition would not have previously warranted accommodation.
Employers must also now consider telework as an accommodation for employees whose pre-existing disability or high-risk condition prevents on-site work. However, absent a protected medical condition, an employee’s generalized fear of the virus will not justify refusing to return to the workplace.
Make Expectations Clear
Particularly in this time of increased fear and uncertainty, clearly defining what employees can expect from their employer and what their employer expects of employees furthers two important goals. First, employers can reduce legal risk by demonstrating their commitment to ensuring a safe and equitable workplace. Employees should know how their employer plans to keep them safe, be able to see those plans in action, and feel confident that reporting safety concerns will not lead to retaliation.
An employee who believes management takes their safety seriously is more likely to voice concerns internally, rather than calling OSHA. The same principle applies to potential discrimination claims—an employee who is confident in their employer’s commitment to an equal opportunity workplace is less likely to assume discriminatory intent.
Second, clearly stated workplace policies and performance expectations may prove crucial to an employer faced with legal action. For example, an employer can better defend disciplining an employee for workplace safety violations against discrimination allegations when employees received clear instructions on the new protocols and consequences for protocol violations.
Likewise, an employer’s dissemination and reinforcement of an unambiguous policy prohibiting non-exempt employees from working beyond their scheduled hours without authorization will be valuable should the employer later face allegations of unpaid overtime. If your business’s pre-pandemic policies do not reflect current workplace realities, consider updating them.
Discrimination claims often arise from an employer’s seemingly arbitrary enforcement of workplace policies. Widespread reductions in force, new leave entitlements, and increased need for non-medical accommodations offer even more opportunities for inconsistent policy enforcement to create legal risk.
Be sure any employment actions, positive or negative, reflect your business’s established policies and are implemented as consistently as possible throughout the workforce, subject to medical exceptions. Whenever possible, employers should apply and enforce leave policies and offer non-medical accommodations, like telework or a flexible schedule, uniformly among similarly situated employees to prevent discrimination claims.
With high unemployment and increased financial uncertainty, employers should expect heightened scrutiny of their employment decisions. Of course, employers still have the right to discipline or terminate underperforming employees, and cash-strapped employers may still need to reduce workforce costs. But to protect themselves when making these decisions, employers must remain vigilant in documenting the legitimate, non-discriminatory reasons for employment actions.
This means documenting an employee’s disciplinary infractions or performance issues over time, including the specific policy violated or metric for judging performance, and documenting the job-related and primarily objective criteria for implementing workforce reductions. Thorough documentation is also crucial when administering new leave entitlements, like federal paid sick leave and family leave; addressing accommodation requests; and complying with workplace safety standards.
While no employer can eliminate legal risks completely, those who can adapt common best practices to address evolving challenges—in addition to seeking legal advice as necessary—will be well on their way to minimizing the new legal risks of the post-shutdown workplace.