Employment lawsuits and EEOC complaints are surging. All employers have had to adjust in response to federal, state, and local COVID orders. Small business not previously subject to FMLA have had to suddenly enact polices to comply with expanded regulations under the Families First Coronavirus Relief Act (“FFCRA”). Transitioning employees to remote work has not been easy either. However, businesses have to take extra care to make changes and transitions the right way, so that they are not subjected to employment discrimination or retaliation lawsuits. Litigation is not the only downside to employee strife – turnover is notoriously expensive and adding new team members during the pandemic brings its own set of challenges. Remember that communication, flexibility, and kindness goes a long way as we all continue to deal with a surging global pandemic.

An important note: Michigan recently enacted the COVID-19 Response and Reopening Liability Act that gives businesses immunity from COVID-related tort claims so long as they have been following all applicable laws and regulations. A tort claim is a claim that a customer or visitor can make against your business for an injury suffered on the premises. This new Act only applies to tort claims – it does not grant immunity from discrimination, contract, workers’ compensation, or any other type of claim or lawsuit.

What are some of the situations that may lead to an employment discrimination or retaliation claim against your business? There are many different situations, and each is fact-specific, but here are some common examples:

• Discharging an employee because they or someone they have to care for contracted COVID.
• Discharging an employee, reducing their hours, benefits, or otherwise treating them differently because they are taking leave under the FFCRA.
• Denying an employee parental leave to care for a child whose school closed or when child care becomes unavailable.
• Threatening to demote employees, reduce hours, or to reduce pay if they took leave under the FFCRA.
• Denying reasonable accommodations for remote work or schedule adjustments.

Illegal retaliation is generally easier to prove than discrimination. Discrimination requires proof of an employer’s illegal motive. Retaliation simply requires proof that an employer treated an employee differently when they took leave or after they came back.

What can you do to protect your business from employment discrimination or retaliation claims? Again, each business and situation is fact-specific, so there is no one-size-fits-all approach. However, here are some general guidelines:

• Be flexible and recognize that the pandemic has affected people with different family circumstances in different ways. People with children and single parents are more likely to need adjustments from their employers.
• Make sure your workplace polices and employee handbook are up-to-date and consistent with the latest government guidance.
• Educate managers and supervisors on the policies and applicable laws to ensure best practices.
• Consult an attorney if you are not sure about how the new regulations apply to you or whether your organization is following federal and state employment laws.

Above all, be kind, flexible, and understanding. The pandemic is a world-wide crisis that has impacted everyone, and some more than others. From a business standpoint, a little flexibility can go a long way to reducing turnover cost, litigation costs, and boosting overall worker morale (which is invaluable).

Dan Artaev is a former Assistant Attorney General with the State of Michigan in the Labor Division, and in private practice has represented numerous employers with respect to employment law matters, including responding to EEOC and wage and hour complaints. Email Dan at dan@artaevatlaw.com or call or text (269) 930-0254 to set up your consultation.

Disclaimer: This guide is for general informational and promotional purposes only. Nothing herein constitutes legal advice. Every business is different and faces its own unique set of challenges. Do not take any action with respect to your business until you have obtained specific guidance from a qualified professional.

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