Reducing Legal Risk in 2022 and Preventing COVID Lawsuits

As the pandemic drags on, many employers have been subject to COVID-oriented lawsuits. While legal action is always grueling for a workplace, it may be especially damaging to businesses as they attempt to recover from the economic chaos of the past two years and contend with the challenges of recruiting in 2021. MP’s HR services team shares the top potential reasons for COVID lawsuits and HR compliance tips to decrease legal risk for employers right now.

Top 4 Reasons for COVID-oriented trends in lawsuits

1. Safety and protection:

Employees are frequently alleging their workplaces didn’t adequately protect them from COVID.

Reducing legal risk: Employers should develop COVID safety policies. These employee policies should include guidance for company protocols surrounding hygiene, safety, social distancing, masking, travel for business and outside of work, and protocol for reporting possible COVID exposure or testing positive for COVID. Requiring employees to get the COVID vaccine may create more legal risk. However, employers could encourage vaccination, make it easy to take time off for vaccination (and side effects of the vaccine), and (per the Equal Employment Opportunity Commission or EEOC) even incentivize it.

2. Americans with Disabilities (ADA) accommodations and leave requests:

Employees are suing their workplaces for failing to follow the ADA interactive process or failing to offer adequate accommodations for individuals with disabilities. These ADA compliance suits are frequently regarding:

• employers who allegedly didn’t offer adequate accommodations for protection from COVID in the workplace (i.e., remote work, an isolated workstation, PPE, special scheduling, etc.)
• employers who allegedly didn’t offer employees adequate accommodations for an exception from COVID vaccination requirements
• employers who allegedly didn’t offer adequate accommodations for caring for a sick relative or a child who required childcare

Reducing legal risk: Employers should train managers in ADA compliance. They should also ensure that employee policies for COVID and COVID vaccination include the process employees will utilize if they request reasonable accommodations. It’s a best practice to include HR professionals in all interactive process conversations rather than allow only managers to conduct them with employees. These conversations and requests should be thoroughly documented and saved in HR records that are private and comply with ADA standards.

3. Wage and hour violations:

Employees are suing employers for failing to pay overtime in accordance with state and federal wage and hour laws, particularly if they worked remotely. Additionally, some employees are suing because they believe they were misclassified as independent contractors. These misclassifications result in a lack of protection by labor laws, access to benefits, or inaccurate compensation.

Reducing legal risk: Employers should start by ensuring every employee has an updated job description. These job descriptions should be examined and classified by HR professionals. (MP’s HR experts assist with tasks like this one.) To mitigate legal risk, employers should consult with an HR professional or legal counsel to assist with rectifying misclassifications.

4. Tax law regulations for remote workers:

States are beginning to enforce income and payroll tax laws more stringently than they did in 2020, when the pandemic and remote work arrangements first began and were assumed temporary. As most state of emergency orders lift and employers institute permanent remote work arrangements, states will require employers to pay taxes where employees perform work. These taxes will be collected even if employees perform work in a separate state or city from the company’s base of operations.

Reducing legal risk: Employers should audit where all their remote employees are located. They should then work with an employment lawyer, HR expert, and CPA to register for payroll taxes and other appropriate corporate taxes in the states they need to. Employers with remote workers in other states may also need to reach HR compliance for these new states, updating their employee handbooks and retraining managers.