The stress associated with COVID-19 has been intense. As the virus ravages into its second full month of social distancing-related measures in the U.S., the government and local businesses are looking at “releasing” certain restrictions. The fact remains that businesses face risk as they seek to meet the new demands of their customers while balancing their responsibilities to employees.

Recent lawsuits filed surrounding COVID-19-related discrimination illustrate the challenges associated with this balancing act. Take for example Jones v. Eastern Airlines, a lawsuit recently filed in Pennsylvania federal court. The plaintiff, a single mother, alleges that she was terminated after being denied leave under the Families First Coronavirus Act (FFCRA). The employee expressed concerns about balancing the demands of childcare with her job responsibilities.

Several lessons can be gleaned from the Jones case and other Coronavirus-related litigation. In order to attempt liability prevention, I recommend that businesses:

1. Create COVID-19 related policies. Odds are that your current handbook and related policies do not address the extraordinary situation that is COVID-19, and the two new laws passed relating to employees (CARES Act and FFCRA). Create an interim policy that directly addresses common situations such as absence related to the absence of childcare due to COVID-19 (covered under the FFCRA for many employers).
2. Constantly review emergent guidance. The CARES Act and FFCRA are major pieces of legislation passed within only a few weeks. Check out federal agencies’ guidance on how to handle common scenarios that may be left unclear by the language of the laws. I recommend checking out the EEOC’s recent publication for helpful discrimination guidance here.
3. Take a holistic approach. One size does not fit all in the context of the Coronavirus pandemic. While all employees should be treated equally, employers should review the actual status of the government’s response (i.e. government stay-at-home orders) and public-health feedback, such as direction provided by the Centers for Disease Control and Prevention (CDC) in determining the next phase for their workforces.

Stay well and feel free to reach out to me to discuss your company’s COVID-19 policy.