Living through a pandemic is a little like skydiving. You have to jump, you know it will be an experience, but there is that uncertainty of "what ifs" as you step out. And, unless you are expert, you are never quite certain where you will land.
In the world of employee relations, travelling through a pandemic feels a little like jumping out of a plane with no parachute. We have not done this before, and sometimes it feels like there is not that lifeline of experience to tell us how to negotiate some of the employee issues we will face. But with employee misconduct, the lifeline really is that the more things change, the more they stay the same. I spoke in a recent blog about the importance of staying on task in investigating misconduct and dealing with it appropriately, even if it requires spending to address the issues. https://www.bobbikdominick.org/post/spending-to-save-money-external-investigations. As we move further into the pandemic, here is a "heads up" about some of the issues we are seeing pop up that may require employer response.
Most concerning are the cases that are arising where workers are claiming retaliation for complaints about workplace safety. These complaints have hit prominent employers like Amazon, as well as smaller more localized employers, such as production facilities. The allegation generally is that an individual was fired for raising safety concerns such as protective equipment and working conditions during the pandemic. OSHA will be investigating some of those types of concerns, and employers should bee very proactive in receiving such complaints and investigating them internally. One potential issue is that often organizations have their safety and human resources functions separated, and the safety arm of the organization may not be as attuned to responding appropriately to complaints or assuring compliance with non-retaliation directives. Organizations will need to pay attention to this area.
Another area that will receive significant attention from the EEOC is in the area of national origin or ethnic discrimination, where those who are viewed as "Asian" are harassed or bullied because of the "China virus." As in the case of Arab discrimination after 9/11, the EEOC will be watching for this, and employers should also be vigilant, and investigate thoroughly any situation that may fall in this area.
Another area that is sure to give rise to new complaints is an organization's response to disability issues and reasonable accommodation requests. We will see those with anxiety have difficulty coming back to work when the threat of illness is still high. We will see those who have pre-existing conditions that make them susceptible to the virus express concerns about coming back, and request telework accommodations. Employers will need to remain aware of these issues, and investigate any complaint that might fall in this arena.
In short, the work on investigating workplace misconduct never ceases. As one of my colleagues recently said: "Harassment is still harassment even if it happens on Zoom." The need for investigations will remain and may even heighten during this difficult time. Stay safe, and when you need to jump on an investigation, consider a competent investigator to serve as your parachute.