Have You Thought About … Making certain Pandemic Fatigue Doesn’t Lower Compliance?

Companies have drafted tons of new policies to keep operations going in the pandemic, whether required by law or to enable new business methods. However, a simple guideline is only the first step in protecting your business from potential liability. Whether policies apply to employment, public health policies, or even refunds and returns, failing to update policies in a timely manner, comply with those policies, publicize them, and ensure consistent implementation of those policies are likely to result in costly investigations or lawsuits.

Often the first questions asked in these circumstances are: (1) Was there a policy? (2) What has been done to ensure compliance with the Directive? and (3) the policy was followed. COVID-19 fatigue brings all three questions to the fore.

For example, earlier this month, an upscale Los Angeles area hotel was the subject of a lawsuit for non-compliance with its COVID-19 guidelines. The hotel had posted its COVID-19 policy on its website, which was tracking the American Hotel and Lodging Association’s Safe Stay initiative: guests must wear masks when moving around the property and maintaining social distance. Additionally, the restaurant stated that due to COVID-19 guidelines, it would not accept parties larger than six and limit food to two hours. The lawsuit alleges that the hotel and restaurant were not in compliance with COVID-19 guidelines due to the plaintiff’s visit to the property as the plaintiff saw a number of hotel guests who were not wearing masks and were in the hotel lobby and elevators failed to adhere to social distancing guidelines. The plaintiff also alleges that the restaurant served multiple tables with six or more tables and that the tables were no more than two meters apart.

Similarly, a national retailer recently lost its offer to dismiss a class action lawsuit, largely due to failure to ensure compliance with and compliance with its policies. In particular, the court allowed the class action lawsuit to proceed with the theory that the company failed to adequately inform consumers that it had changed its returns policy in the face of the COVID-19 pandemic and that it would refuse certain returns. Consumers also claim that the retailer fails to train its employees on its return policy, which results in consumers receiving misinformation about returns on a regular basis.

Networking of COVID-19 and non-COVID-19 guidelines

To the extent that COVID-19 guidelines have been developed on an emerging basis and followed before 2021, it is also important to review which guidelines will be operationalized for the foreseeable future and therefore combined or networked with non-COVID-19 guidelines should.

For example, what began as provisions for paid and unpaid emergency leave for employees under the Federal First Coronavirus Response Act (FFCRA), or paid and unpaid leave in states or communities, can now be part of a company’s comprehensive PTO and leave policy and a The Company’s health and safety vacation policy in accordance with the Family and Medical Leave Act (FMLA) and the policies and practices for disability accommodation under the Americans with Disabilities Act (ADA).

Similarly, many companies have announced that they will be as far away as possible by at least mid-2021 or even 2022. The crystallization of guidelines, standards and expectations for remote work now saves headaches related to IT security. Paying non-released employees for the entire working time; Ensure reasonable refunds under certain state laws (such as California and Illinois); Workplace agreements (to avoid headache with year-end tax liability); Business travel considerations; Behavioral and behavioral expectations for the long-term remote workplace.

The same goes for health and safety plans – almost a year after the pandemic began, these aspects should be included in the company’s health and safety plans, provided that COVID-19-related health and safety policies and practices are in place, they are not competing and inconsistent guidelines. Companies can maintain their own COVID-19-specific health and safety guidelines, e.g. B. Reporting requirements for “outbreaks”.

And employers need to be sensitive not only to their COVID-19 policies, but also to how those policies relate to mitigating other potential employment-related claims. For example, lawsuits have been filed against employers who, despite the COVID-19 policy, are unable to work from home because the person was on protective leave. Retaliation and whistleblower claims made in relation to an employee’s dismissal have been combined with COVID-19-related cases.

Data protection and breach protection at the forefront

More than ever, companies doing more online business need to ensure that their privacy policies are up to date with applicable laws and that all measures required to comply with these policies are fully implemented. Similarly, organizations need to monitor compliance with data security and incident response policies as data breaches continue to increase due to remote working and the increased availability of compromised data – breaches are up 270% year over year. Most data breach laws allow organizations to significantly minimize the risk of government investigations and enforcement actions by demonstrating that they have put in place adequate security measures and that they have been followed.

Compliance 2021

The flood of new laws, regulations and orders as well as rumors and speculations about them continues rapidly. In this context, it is easy to forget or lose track of the “usual” compliance updates that are often carried out at the end of the year. As with all other competing priorities, however, the updates and implementation of Compliance 2021 shouldn’t be lost in the shuffle. This has never been more critical than in the area of ​​compliance with labor laws, where there are numerous changes for 2021. For example, in Colorado alone there are seven newly enacted or revised labor laws and regulations that require a significant update to Colorado employer policies and practices. Most of these laws also have new posting and compliance obligations, and all have administrative and / or private provisions on the right to sue. This is just a snapshot of non-COVID-19 labor laws in a U.S. jurisdiction. As of 2021, the list of updates will be extensive for a national or global employer, with more to come.

Proactive planning for 2021 and beyond

When planning upcoming measures – between continuing the pandemic, ongoing changes to health and safety guidelines (most recently the CDC’s recommendation that reduced quarantine lengths may be acceptable under certain circumstances), potential federal measures to extend or provide further relief laws or mandates , Anticipation of a vaccine, continued school and travel interruptions and closings – the only certainty is that there will continue to be more uncertainty for businesses.

As the examples above show, creating the guidelines for adapting to change is only the first step. Organizations must take clear, documented steps to create and update compliant policies in real time, and to incorporate compliance with these policies into their day-to-day operations. Ensuring that workplace policies are properly passed can prevent class actions and government enforcement efforts, as low-resource regulators are far less likely to take action against companies that have a proven record of complying with the law. Companies must also provide those affected with guidelines and clarify when certain exceptions may apply.

Ultimately, it has become increasingly important to be ready to take action to deal with the unexpected crisis and to conduct proactive crisis communication efforts to highlight compliance and good faith. With this in mind, don’t let the duration of the pandemic and COVID-19 fatigue affect compliance.