Compliance During and After a Pandemic
Director of Compliance
The COVID-19 pandemic has left employers vulnerable to many new employment law problems. Numerous organizations have already faced internal complaints and lawsuits regarding their response to this seemingly never-ending crisis.
Here are five areas employers should focus on to avoid pandemic-related workplace liabilities:
Federal, state, and provincial governments across the United States and Canada have been passing laws that provide time off to workers affected by COVID-19. Reasons for leave under these laws may include taking time off to care for themselves, to get a vaccination, being subject to quarantine or isolation orders, caring for family members with COVID-19 or who react negatively to a vaccination, and caring for a child or family member whose school or place of care closes due to the coronavirus. To minimize legal liability, employers must determine their obligations under these laws and provide time off to workers as warranted.
Wage and Hour Requirements
The switch to remote work during the pandemic has made it more difficult for organizations to comply with the myriad federal, state, and local employment laws affecting employees. Many companies have had to deviate from conventional time systems used to track work hours, calculate overtime, and ensure that timely meal and rest breaks are provided where required (e.g., California). Therefore, more than ever, employers should emphasize and regularly communicate to their non-exempt workers that all work time must be recorded. This will help ensure that employees are properly paid and that allegations of employer wage theft are avoided.
With the continued spread of COVID-19, personal and family responsibilities have become a greater burden on non-remote workers and a major factor in unplanned employee absences. Unplanned absenteeism can negatively affect productivity, damage employee morale, and ultimately harm the company’s bottom line. It may also subject organizations to liability under the various predictive scheduling laws popping up around the United States which require certain employers to give employees sufficient advance notice of their work hours or face stiff penalties. It is imperative for today’s pandemic-weary employers to have a robust absence-management system in place to battle these scheduling-related headaches.
Throughout the COVID-19 pandemic (and even afterwards), employers should acquire up-to-date information about local safety practices and laws in all jurisdictions where they have employees. The Centers for Disease Control and the Occupational Safety and Health Administration continuously issue revised safety guidance and recommendations for certain industries, while many state and local jurisdictions have passed laws and released orders concerning worker safety measures including laws allowing or prohibiting employers from requiring employees to receive a COVID-19 vaccine. Employers must stay current with these edicts or possibly face substantial workplace liability.
Reasonable accommodations include workplace adjustments or modifications provided by employers to enable applicants and employees with disabilities to enjoy equal employment opportunities. Under the Americans with Disabilities Act, and comparable state laws, if an accommodation is requested and needed by an individual with a disability, the employer must provide it unless it would create undue hardship for the employer. There may also be reasonable accommodations that can protect workers whose disabilities put them at greater risk from COVID-19 and who request an accommodation to avoid exposure. To reduce potential liability in this area, employers should be open-minded and flexible in determining what accommodations are feasible under the circumstances.
New legislation, novel regulations, changing agency guidance, and public health precautions regarding COVID-19 (and other employee health issues) will be affecting and shaping American and Canadian employers’ actions for years to come. It has already become the new normal. Employers must remain dedicated to compliance to protect their workers and to stay out of legal trouble. It may even be necessary to revise company policies and practices to remain compliant, and to consult with legal counsel as employer obligations continue to evolve and grow.
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