Experts discuss legal challenges businesses could face in returning to work

Closeup on medical mask and hand disinfectant on the table in temporary home office during the coronavirus epidemic in the living room in sunny day.

Potential lawsuits from employees or customers, complications with unemployment benefits, and new government requirements are all new challenges Kentucky employers will face as they look to reopen their businesses. Legal liability experts, including McBrayer Member Cindy Effinger, Jackson Kelly PLLC Member Jay Ingle, Dressman Benzinger LaVelle Partner Kelly Schoening Holden, and U.S. Chamber Institute for Legal Reform VP of Legislative Affairs Nathan Morris discussed these issues Tuesday as part of the Kentucky Chamber’s “Restart Kentucky” initiative.

Moderated by John Crockett, General Counsel, Chief Compliance Officer and Corporate Secretary at LG&E and KU,  the panel said the governor’s 10-point plan for reopening is a good starting place, but suggested each company should have their own individual plan and employers should be prepared to clearly communicate that pl to their employees.

The top potential concerns for companies in the coming months include potential lawsuits dealing with safe work environments, discrimination, and other issues as employees return to work and employers seek to accommodate the new requirements, according to the panel.

To cut down on any confusion and/or liability, the panel encouraged companies have an individual designated to handle any questions and logistics surrounding any new requirements and address concerns from employees.

As masks and health checks will now be required of all employees starting May 11, Effinger stated it is important to have a plan in place for individuals’ temperatures recorded each day that is safe and anonymous. Ways to achieve this could be having a system to check “normal” or “not normal” instead of recording the exact temperature, assigning only one or two people to be in charge of this task, ensuring those individuals know the importance of anonymity of the checks, and implementing a way to keep the records separate from other personnel records.

Employers could also face hurdles with reopening and calling employees back to work who will have issues with childcare, as the government is keeping childcare facilities closed for the foreseeable future. Having a standard form that states there is no other adult in the home and other qualifications was suggested to ensure proper procedures with Family and Medical Leave Act pay or other accommodations that will need to be made.

Some individuals will be scared about safety and health in returning to work. The panel noted that if an employee has been asked to come back to work and all steps have been taken to ensure a safe and clean work environment, it is likely disciplinary action will have to be taken (including potential firing) if the individual chooses to stay home. Those who are in a vulnerable population or have legitimate health reasons should provide a doctor note in order to ensure proper procedures take place with certain types of pay or unemployment benefits.

Some states have already started taking steps to clear up unemployment insurance benefit eligibility. In Ohio, if an individual chooses to not return to work when asked by the employer, they are no longer “actively looking for work” and will not qualify for unemployment benefits. Kentucky has not yet taken this action, but the panel said these types of discussions will likely start to take place in the coming weeks.

Watch the full discussion on legal liability in the video below:

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Jacqueline Pitts
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