Employer Liability: COVID-19 Best Practices

Employment Practices Liability: COVID-19 Best Practices

Employee safety and sick leave, working from home and navigating hiring or furloughs

Businesses are having to quickly learn how to manage employment issues in the rapidly changing circumstances of the COVID-19 pandemic, which creates exposures related to directors and officers and employment practices liability. By sharing best practices, insurance carriers and brokers can help policyholders navigate employee management issues during emerging situations.

The following resources highlight some best practices to help businesses and their workers while mitigating employer liability during COVID-19, says Argo Pro Underwriting Manager and EPL Product Lead Tracy Sartorius.

Employers are obligated to provide a safe and healthy workplace in accordance with applicable law and guidance.

Doing so during a pandemic requires specific steps to reduce the chance of virus transmission:

  • Review the OSHA guide on preparing workplaces for COVID-19, and establish guidelines for what employees should do if they are exposed to contagious disease.
  • Strongly encourage sick employees to stay home. If employees do come to work sick, keep them separated from other employees and send them home immediately.
  • Encourage employees to practice infection control, including proper handwashing, respiratory/sneezing etiquette, and wearing of appropriate protective gear.

Follow guidance from the U.S. Equal Employment Opportunity Commission on how to address employee and job applicant health status during a pandemic.

According to the EEOC, employers may:

  • Ask employees who traveled to certain areas during a pandemic to stay home for a period of time before returning to work.
  • Ask employees about their symptoms but avoid asking medical questions. Maintain confidentiality about employee health information in compliance with the Americans with Disabilities Act.
  • Send home employees with COVID-19 or associated symptoms.
  • Require employees to follow infection-control practices, such as regular handwashing.
  • Take the temperature of employees to determine if they have a fever, although information related to a fever or other symptoms is subject to ADA confidentiality requirements (and the absence of a fever does not rule out COVID-19).
  • Take the temperature of job applicants after making a conditional offer of employment.
  • Screen job applicants for COVID-19 symptoms after making a conditional offer of employment, as long as all entering employees for the same type of job are given the same screening.
  • Delay the start date of an applicant with COVID-19 or associated symptoms.
  • Where a prospective employer needs an applicant to start work immediately but the applicant has COVID-19 or symptoms of it (and thus cannot safely enter the workplace), the prospective employer may withdraw the job offer.

For information on handling reductions in pay and hours worked, see the U.S. Department of Labor’s guidance on furloughs and temporary business closures.

Understand the paid sick leave and expanded family and medical leave provisions of the emergency Families First Coronavirus Response Act.

The act applies to employers with fewer than 500 employees and includes anti-retaliation protections. Ensure you have posted, emailed or otherwise made available to employees the Families First Coronavirus Response Act notice poster issued by the U.S. Department of Labor. Also be aware of state and local leave laws that may be affected by the Coronavirus.

Stay informed about local and state orders.

Check in regularly with your state’s department of health, and consult The Council of State Governments’ list of state executive orders and COVID-19 actions.

Make sure your company’s remote-working plan is comprehensive.

The plan should account for, among other things:

  • Workers’ compensation coverage for remote workers, as appropriate
  • Reimbursement requirements for employees using internet service at home
  • Data security on home networks
  • Comprehensive communication plans for efficient and effective communication with employees, such as a hotline and internet-based messaging methods

Staying current with the changing landscape of COVID-19 will help employers mitigate their exposure to risks associated with the pandemic.

Additional COVID-19 resources

Visit these resources regularly to stay up to date:

Learn more about Argo Pro.