Mitigating the risk

Taking steps in advance to avoid these risks will not eliminate them, but will reduce the risk and better position the employer to defend future litigation and agency complaints.

Monitor and comply with COVID-19 requirements.
Prepare a workplace safety plan.
Explore ways to increase social distancing and remote working opportunities. This will not necessarily continue after the pandemic.
Implement and require screening and stay-home policies. Include confidentiality, complaint and non-retaliation provisions.
Implement and publicize reopening requirements, including masks, social distancing signs and floor markers and cleaning processes.
Ensure relevant policies are updated, including policies related to social media, non-harassment, anti-discrimination, anti-retaliation, FMLA, emergency leaves under the FFCRA, and any state or local laws.
Check for consistency with public health recommendations and new laws.
No policies or practices designed to "protect" older or pregnant employees more than other groups.
Approach requests for leave and remote considering whether they are requests for accommodations and initiate the ADA interactive process as appropriate, documenting all of your communications and efforts.
Encourage internal complaints/reports and handle them properly.
Complaint procedures should be widely disseminated and easily accessible.
Consider 24-hour toll-free hotlines, especially when employees work nontraditional shifts or are removed from immediate access to upper-level managers and/or human resources.
Consider additional ways to publicize the policy, such as the home screen of the company's electronic system and any relevant links.
Investigate promptly and thoroughly.
Educate managers who are designated to receive complaints on the policies and employment laws.
Train/remind managers to investigate promptly and thoroughly or to escalate complaints to upper management immediately.
Even anonymous complaints should be investigated as thoroughly as the information permits.
Take consistent disciplinary action with respect to violations.

Amie Willis is a shareholder in Ogletree Deakins' Atlanta office. She is a member of the firm's COVID-19 Litigation practice group and represents employers across the country in employment matters in a variety of industries.

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COVID-19 litigation: Identifying types and mitigation strategies

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