Have You Thought About … Ensuring Pandemic Fatigue Doesn’t Decrease Compliance?
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Have You Thought About … Ensuring Pandemic Fatigue Doesn’t Decrease Compliance?

Brownstein Client Alert, December 7, 2020

Companies have drafted myriad new policies in order to continue pandemic-era operations, whether required by law or to accommodate new ways of doing business. However, simply having a policy is only the first step to protecting your business from potential liability. Whether policies relate to employment, public health directives, or even refunds and returns, failure to timely update the policies, to follow those policies, to give notice of those policies and to ensure consistent implementation of those policies is likely to result in costly investigations or lawsuits.

The first questions asked in these circumstances are commonly: (1) was there a policy; (2) what was done to ensure compliance with the policy; and (3) was the policy followed. COVID-19 fatigue brings all three questions to the forefront.

For example, earlier this month an upscale Los Angeles-area hotel found itself the subject of a lawsuit for failing to comply with its COVID-19 policies. The hotel had posted its COVID-19-related policies on its website that tracked the American Hotel and Lodging Association’s Safe Stay Initiative: requiring patrons to wear masks when moving about the property and maintaining social distancing. Additionally, the restaurant stated that, due to COVID-19 guidelines, it would not accept parties larger than six, and would limit dining to two hours. The lawsuit alleges that, based upon the plaintiff’s visit to the property, the hotel and restaurant were not complying with their COVID-19 policies, as the plaintiff saw a number of hotel guests not wearing masks in the hotel lobby and elevators and not abiding by social distancing guidelines. The plaintiff also alleges that the restaurant was serving multiple tables of six or more, and that tables were not spaced six feet apart.

Similarly, a national retailer recently lost its bid to dismiss a class action essentially for failing to ensure compliance with and follow their policies. Specifically, the court allowed the class action to proceed on the theory that the company failed to adequately notify consumers that it had altered its return policy in light of the COVID-19 pandemic and would be denying certain returns. The consumers further allege that the retailer does not train its employees on its return policies, causing consumers to regularly receive misinformation about returns.

Meshing COVID-19 and Non-COVID-19 Policies

To the extent COVID-19 policies have been developed on an emergent basis and followed, in advance of 2021, it is also important to review which policies should be operationalized for the foreseeable future and therefore combined or meshed with non-COVID-19 policies.

For example, what started as emergency paid and unpaid leave provisions for employees under the federal Families First Coronavirus Response Act (FFCRA) or state or municipal paid and unpaid leave may now be a part of a company’s comprehensive PTO and leave policy, may impact a company’s job-protected leave policy in compliance with the Family and Medical Leave Act (FMLA), as well as disability accommodations policies and practices under the Americans with Disabilities Act (ADA).

Similarly, many companies have announced they will be remote, to the extent possible, at least until mid-2021 or even into 2022. Crystalizing remote work policies, norms and expectations now will save headaches when it comes to IT security; paying non-exempt employees for all working time; ensuring proper reimbursements as required by certain state laws (like California and Illinois); work location agreements (to avoid year-end tax liability headaches); business travel considerations; and conduct and behavior-related expectations for the long-term remote workplace.

The same holds true for workplace safety plans—almost one year into the pandemic, to the extent the COVID-19-related workplace safety policies and practices are here to stay, those aspects should be incorporated into the company’s health and safety plans so that there are not competing and inconsistent policies. Companies can retain stand-alone health and safety policies that are COVID-19 specific, such as “outbreak” reporting requirements.

And, employers need to be sensitive to not only their COVID-19 policies, but how those policies relate to mitigating other potential employment-related claims. For example, lawsuits have been filed against employers who fail to accommodate work from home requests regardless of the COVID-19 policy because the person has been out on protective leave. Retaliation and whistleblower claims, asserted in reference to an employee’s termination, have been combined with COVID-19-related cases.

Privacy and Breach Protection at the Forefront

Now more than ever, companies that are conducting more business online must ensure that privacy policies are up-to-date with applicable laws, and that any measures required to comply with those policies are fully operationalized. Similarly, as data breaches continue to rise as a result of remote work and the increased availability of data subject to compromise—breaches are up 270% from last year—companies need to monitor compliance with data security and incident response policies. Under most data breach laws, companies can greatly minimize the risk of government investigation and enforcement by demonstrating both that they had reasonable security measures in place, and that they were being followed.

Compliance 2021

The flood of new legislation, regulations and orders, and rumors and speculation about the same, continue at a breakneck pace. With this context, it is easy to forget or lose track of the “usual” compliance updates that are often performed at year-end. But, like all other competing priorities, 2021 compliance updates and implementation should not be lost in the shuffle. This has never been more critical than in the employment law compliance arena, where changes are aplenty for 2021. For example, in just Colorado alone, there are seven newly promulgated or revised employment laws and regulations that will require significant updates to Colorado employers’ policies and practices. Most of these laws also have new posting and compliance obligations, and all of them have administrative and/or private right of action provisions. And, this is simply a snapshot of the non-COVID-19 employment laws in one U.S. jurisdiction. Going into 2021, for a nationwide or worldwide employer, the list of updates is substantial, with more to come.

Proactive Planning for 2021 and Beyond

In planning for what’s ahead—between the continuation of the pandemic, ongoing changes to health and safety policies (most recently, the CDC’s advisory that reduced quarantine lengths may be acceptable in some circumstances), potential federal actions to extend or provide further relief bills or mandates, anticipation of a vaccine, continued school and travel disruptions and closures—the only certainty is that there will continue to be more uncertainty for companies.

As the examples above demonstrate, creating the policies to accommodate for change is only the first step. Businesses must take clear, documented steps to craft and update compliant policies in real time, as well as to weave compliance with such policies into their day-to-day operations. Ensuring genuine adoption of workplace policies can stave off class actions as well as government enforcement efforts, as resource-strapped regulators are far less likely to take action against businesses that are demonstrably embracing compliance with applicable laws. Companies must also make policies readily available to those impacted and clarify when certain exemptions may apply.

Finally, it has become increasingly incumbent to be prepared to spring into action to manage the unanticipated crisis, with proactive crisis communications efforts to highlight compliance and good faith. With this context, do not allow the length of the pandemic and COVID-19 fatigue to diminish compliance.

This document is intended to provide you with general information regarding updates related to coronavirus. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.

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