Avoiding HR claims

Defensible terminations in a post-pandemic world

by JOHN A. MAVROS and KELSEY L. WONG JAVIER

The coronavirus pandemic has upended life as we know it, and many industries, including hospitality, are still facing the uncertain, long-lasting effects of the virus, including a shortage of workers. However, the rise of COVID-19-related wrongful termination claims alleging retaliation and discrimination have risen dramatically during the past year and half.

Across the nation, from Feb. 1, 2020, to Sept. 1, 2021, more than 3,400 traditional employment cases against employers have been filed as a direct result of the pandemic. Of the filed cases related to COVID-19, nearly half (approximately 1,580) involve claims of retaliation or discrimination. This includes claims alleging discrimination for taking COVID-19 leave and retaliation for complaining about COVID-19 safety protocols.

As a hospitality employer navigating the complexities of COVID-19, how can you ensure a defensible termination to avoid an HR claim and/or employment lawsuit? Here are five steps hotels must take to protect against pandemic-related discrimination and retaliation claims:

1. UPDATE EMPLOYER POLICIES
If your company updated its health and safety policies to address COVID-19, you also should ensure your employee handbook has strong anti-discrimination and anti-retaliation provisions. The absence of these policies will only strengthen a disgruntled employee’s wrongful termination lawsuit. Receipt of all new policies should be acknowledged by employees in writing.

2. DESIGNATE A POINT PERSON TO HANDLE COVID-RELATED CLAIMS
Depending on the size of your company, designate an individual or group to respond to COVID-related issues, including, for example, employees testing positive for COVID-19 or requesting COVID-related leave. This individual or group should also investigate complaints of unsafe working conditions and COVID-safety violations to ensure a timely investigation is conducted and that an appropriate response is provided.

3. TRAIN ALL SUPERVISORS/MANAGERS
General managers and department supervisors should be trained to identify potential COVID-related complaints or requests for leave from their direct reports. They also should be trained to escalate and communicate these concerns to the company’s point person.

4. DOCUMENT, DOCUMENT, DOCUMENT
Most importantly, you must clearly document all relevant reasons for any termination. Just because an employee is “at-will” does not mean you can skip providing a reason for the termination. In fact, a written notice identifying the legitimate reasons for the termination is a necessity, especially in a post-pandemic world. The failure to identify a reason for termination leaves the door open for employees to “fill in the blank” as to why their separation was illegal.

5. COMMUNICATE AN OPEN-DOOR POLICY AND ASSURE NO RETALIATION
During this time of uncertainty, employers should be clear that employees should feel comfortable reporting COVID-19 concerns or taking COVID-19-related leave, and that they will not face any retaliation. Not only will this benefit your company’s employee relations, but it might help your company avoid COVID-19-related wrongful termination lawsuits.

By integrating these five steps into your HR best practices, you will be head and shoulders above other employers, not only in preventing wrongful termination claims but also in defending one should it arise.