3 Keys to Avoiding Employment Practices Issues Related to COVID

Last week, the Academy of Insurance hosted a class on the EPLI (Employment Practices Liability Insurance) implications of employers’ policies related to COVID-19. The COVID-19 pandemic response around the world included a rapid change from working in an office environment to working from home. For those of us who were already working from home, there wasn’t much of a change in the daily grind. We just kept doing what we did before the world shut down.

For the rest of the world, everyone went to work and school one day and then the next day, everyone was at home, doing their work and taking their school lessons. Some people enjoyed the “new normal” while others deeply wanted to get back to whatever normal they could get back to as soon as possible. Most of the kids thought that they wanted to keep doing school at home because who wants to go to school.

At this point, we are almost two years into the COVID era (kind of like the live-ball era, but not as fun). Offices are reopening and employers are implementing different policies related to how they want people to return to the office environment. Some are not requiring everyone to return to the office. Some are requiring everyone to return, but not every day. Some require masks and others don’t. Some are requiring employees to be vaccinated, while others aren’t.

I’m not debating any of those policies right now. This isn’t the forum for that. If you want to know my thoughts on any of those policies, the rule is that you buy lunch, coffee, doughnuts, bagels, etc. and we sit down and have a civilized conversation. If you want to get more clarity on how some of these policies might create an EPLI issue, you can get the recording of the class here and watch our aftershow here.

Each employer must do what they feel is best for their team, for their customers, and their business. Even with the best of intentions, there is a risk of employment practices troubles. One way to manage the risks of employment practices issues is to properly implement all COVID-related policies and procedures using the following three C’s.

Communication

Policies and procedures that aren’t communicated don’t exist. You may write something down and it might work beautifully on paper, but if it isn’t communicated to the right people at the right time, it’s useless.

The best time to communicate what the business wants of its employees is right away. Teams don’t like change and they don’t like feeling that they are being kept in the dark. As soon as a decision looms in front of the team, they need to be brought into the conversation. While there are businesses that are very large and quick communication can be tough, most businesses are small businesses and that means that whatever decisions need to be made can be communicated rather quickly to everyone.

In implementing new COVID policies, the business needs to communicate exactly what is expected of everyone on the team. Businesses cannot afford to let the rumor mill continually churn out rumors and guesses about what’s next. Getting the policy out there immediately, even if it is an outline or a shell of a policy, to begin with, helps people to deal with the coming change. It’s especially critical in this time when whatever decision a business makes, there will be people on the team who disagree with it.

The communication also should be continual. The team needs to hear the messages over and over until well after the leadership is sick of talking about it. As soon as a policy change is being considered, the team needs to know. When that change takes place, the team needs to hear about it. As the changes are implemented and adjusted, the team needs to hear the leaders talking.

Nationally syndicated talk-radio host, Dave Ramsey says that to be unclear is to be unkind. People will add their details to the situation if the leadership is not proactive about communicating what’s changing, when, what’s expected of them, and what happens if the policy is violated. A lack of communication and clarity causes confusion, distrust, and discontent within the team and is one way to permanently destroy it.

Consistency

Clear and constant communication helps to keep the team engaged when things change, especially when those changes are unwelcome. The communication piece will extend into the implementation piece and when communicating and implementing, the business needs to be consistent with everyone involved.

Consistency doesn’t necessarily mean that the business treats every person the same, because not every person is the same. Everyone on the team has a different situation and everyone has different needs. That doesn’t mean that anyone gets special treatment.

Consistency requires that the business base all of their decisions on the same criteria, which ought to include what’s best for the team members, what’s best for the customers, what’s best for the team, and what’s best for the enterprise. Whatever criteria the business uses, they should communicate them to the team so that the team knows that decisions were not made in a vacuum.

I mentioned that consistency does not require treating every person the same. A business could choose to treat everyone the same and that requires one type of communication. That communication will require clarity that everyone must do the same thing. It also must indicate whether or not there are any exceptions available, how to ask for an exception, and what to do if an exception is granted.

On the other hand, if the business decides that consistency only requires that the business apply consistent decision-making criteria, communication looks different. The business should communicate those decision-making criteria, how the team member can expect the process to work, and what options are going to be considered for each team member. The point in this communication is to identify that the business is not treating each person the same, but that they are treating the decision-making process for each person the same. This can result in different outcomes for two people who may appear to have the same or similar characteristics. This can appear unfair or improper for some on the team. Clear, consistent communication helps to settle this issue.

Compassion

Communication and consistency are keys, but above them all, there is one more key and that’s compassion. Whether or not the business takes the stand that everyone should be treated the same, there should always be room for meeting the individual needs of team members. That’s where compassion enters the mix.

Each business is going to need to answer questions related to implementing their policies and procedures regarding COVID-19 and the working conditions of the team. Those questions include items that can be emotionally charged, such as the following.

• Returning to the office
• Business travel
• The use of masks and facial coverings
• Vaccination requirements
• Testing requirements

For example, a company of 40 people who all worked in the office before COVID-19 decides that on April 4, everyone will return to work in the office full time. Everyone knows about it, and everyone is beginning to prepare for it. The company made and communicated the decision early enough for everyone to ask questions, look at the procedure for making exceptions, and decide how they wanted to move forward.

What happens when someone on the team asks for an exception because they aren’t comfortable returning to the office space, even though the company has implemented additional cleaning and other safeguards? The company could simply dismiss the request out of hand or could look for ways to assist the team member in becoming comfortable with office work.

A business does not need to grant every request for an exception, but the business should honor those requests in that they recognize the request, discuss it with the team member until they get to the core issue, and find a way that works best for everyone involved.

Honoring the request compassionately means that the business looks at the real needs of the team member and the real needs of the business. It could be that the request simply cannot be approved for a variety of reasons. If that’s the case, compassion could mean giving the team member the choice to comply with the policy or go serve another team.

These are tricky waters to navigate for many, but one way to manage the risk of employment practice liability is to clearly communicate as often as possible, to consistently apply the principles in deciding how to move forward, and compassionately deal with those team members that express issues with any policies.

Topics COVID-19