INSIGHT: Thoughtful Return-to-Work Plans Will Cut Discrimination Risk

As states begin to lift stay-at-home orders and business restrictions, employers should be mindful of the discrimination risks associated with reopening and resuming on-site operations.

Determining who should return, when, and under what terms presents potential risks and pitfalls under federal, state, and local anti-discrimination laws. Any unintended disparate impact on a protected group, particularly a group most affected by Covid-19, could result in triggering a class or collective action.

The best way to avoid such claims is to take the time to create a solid and comprehensive return-to-work plan. The plan should address the recall process and selection criteria, the treatment of vulnerable populations, flexibility for caregivers, and whether and under what circumstances test results should be considered when selecting employees for recall, continued furloughs, or layoffs. Doing so will help employers avoid missteps that could expose them to class or collective discrimination lawsuits.