‘Return to Office’ Drive May Lead to Employment Practices Lawsuits

With the COVID-19 pandemic appearing to be behind us, employers that had allowed their staff to work remotely have been bringing them back to the office, but some firms have faced resistance and even lawsuits by employees who prefer to continue working from home.

Career assistance website Zippia reports that two-thirds of Americans are working remotely at least part-time, 92% work remotely at least one day per week, and 68% of workers would like to be remote full-time.

Many companies, rather than requiring staff to be back in the office five days a week, have adopted a so-called “hybrid” working model, where employees work on-site some days and remotely other days. Some may also permit selected employees to work remotely, while not allowing others to do so.

As an employer, you have the right to set your own work policies, which may include when and where people work. Some employers that have received pushback from employees, have threatened them with termination on grounds of job abandonment if they do not comply.

Still, even if it’s within your right, you could still face an employment practices lawsuit that includes allegations of:

Charges of bias and discrimination — Companies that treat different employees differently are vulnerable to discrimination claims. If the boss lets Jane work from home two days a week but doesn’t give Joanne the same ability, Joanne could see that as discrimination, especially if she is a member of a protected class (race, age, disability, etc.).

ADA issues — Some workers who are at higher risk of getting seriously ill or dying if they contract COVID-19, may file an Americans with Disabilities Act discrimination claim against their employer if forced to return to the office.

As with all workers who request accommodations for their disability, the employer is required to enter an interactive process with them to try to find a solution. Ignoring this important step can put you in a difficult position if sued.

Wrongful termination — Employers occasionally experience layoffs. If the bulk of people let go are also those who work remotely, they may believe they have been singled out and could sue.

Failure to promote — Similarly, if managers tend to promote those who are in the office every day instead of those who work remotely, discrimination lawsuits could result.

Other risks

Another issue that could pose problems is in the workers’ compensation insurance space. When employees work off-site, you lose all control over the physical environment. Some workers may be neat freaks who leave their work areas pristine, while others may be comfortable with clutter, dogs and cats.

Generally, an employee is covered under their employer’s workers’ comp insurance if they are injured while working from home, so long as they meet their burden of proving that the injury was work-related. If you are suspicious that the claim is fraudulent and your insurer agrees, the cost of the claim could skyrocket if the worker secures an applicant’s attorney to fight the claim rejection.

Also, employers lose some control over cyber-security risk management. This can be mitigated somewhat by clearly communicating policies about using secure methods when using the internet on company business.

How you can protect your business

There are steps businesses can take to reduce their risks:

Get expert help — Consult with human resources professionals or attorneys who specialize in labor and employment law. They can advise on industry best practices and relevant provisions to add to employee handbooks.

Update your handbook — Even if you do not hire an expert, updating your employee handbook is advisable if it has not been done since before 2020. Your workplace has changed in the last four years; your handbook should change along with it.

Buy employment practices liability insurance — If your business does not currently have this vital coverage, the time to get it is now. If you already have it, work with your insurance agent to make sure that the amounts of insurance and the policy provisions meet your needs.

You rely on the skills and talents of your staff to execute your mission. Keeping them happy while protecting your business is a tricky balance, but it is one you must find a way to strike.

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