By Mike LaSusa

Law360 (November 6, 2020, 4:45 PM EST ) Retailers and restaurants face challenges with staffing up around the holidays every year, but 2020 is posing some unique legal problems during an already hectic time.

The coronavirus pandemic and deep political polarization may create specific pitfalls for seasonal employers, attorneys say. Here, Law360 takes a look at these problems, and what businesses and workers can do to cope during the holiday season.

Keeping Workers Safe With PPE and More

Coronavirus infections are rising across the United States and flu season is underway, leading to warnings from public health experts that the human and economic toll of COVID-19 will continue to mount over the coming months. That's put worker safety at the top of the list of concerns for businesses staffing up for the holidays.

As employers prepare for consumers' year-end travel and spending splurges, they need to consider the health and safety impacts of large numbers of shoppers, diners and travelers interacting with an expanded workforce, plaintiffs' attorney and Correia & Puth PLLC partner Lauren Khouri told Law360.

All workers should have basic personal protective equipment like masks and gloves, as well as access to hand-washing stations and hand sanitizer. But employers shouldn't stop there. Different workplaces may require additional precautions based on job-specific conditions, Khouri said.

"What's most important is for employers to assess their workplace and decide what will keep their employees safe," Khouri said. "In some circumstances it will be PPE, in other circumstances it may be improved filtration systems."

Businesses can provide holiday employees with protective gear, but it's harder to prepare them for potential conflicts with customers over virus protection policies, said Ogletree Deakins Nash Smoak & Stewart PC partner Kelly Hughes, who co-chairs the firm's retail practice group.

Indeed, the National Restaurant Association put out updated coronavirus guidance in October that included additional pointers on mask use and how to de-escalate conflicts with diners. That came just days after the National Retail Federation rolled out a new training program on "customer conflict prevention."

Given the short window of time for training seasonal employees, Hughes recommends businesses instruct workers to refer such incidents to higher-ups.

"At least have them well-versed enough to know who are the people who are the points of contact," Hughes said.

Ogletree shareholder Michael Eckard, who focuses on employment issues, told Law360 that businesses should also consider requiring health questionnaires, COVID-19 testing or even antibody tests from applicants for seasonal positions who have been offered a job but haven't yet been hired.

"In the COVID-19 context, your latitude to do medical screenings is a little bit wider in the prehire context than it is for existing employees," Eckard said.

Home for the Holidays

The ranks of remote workers have swelled amid the pandemic, and according to Kathy Gardner, public relations director for the remote job search company FlexJobs, there's increased demand this year for seasonal employees who will be working remotely.

"In particular, we're seeing a lot of activity around customer service jobs because of the increase in online ordering," Gardner said.

Although telework can help reduce the risk of disease spread, it has its own legal implications. Ogletree's Hughes said preparation and training are crucial for ensuring seasonal remote work arrangements are successful.

Businesses should make sure new remote employees are properly informed about policies surrounding electronic privacy and data protection, Hughes said. It's also important to be clear on laws and procedures regarding issues like expense reimbursements and taxation, especially when employees live in one jurisdiction but work in another, she said.

"An employer really needs to flesh out all of these issues before they bring on remote workers," Hughes said.

Companies should also consider making use of remote interviews and remote orientations for new hires to reduce the risk of an outbreak in the workplace and the associated legal liabilities, Cozen O'Connor partner David L. Barron told Law360.

"You can't do the HR orientation or the safety training with a large group of people, so you may have to do multiple sessions for all of those things," said Barron, who has led the defense firm's coronavirus task force.

Turning Down the Political Heat

Although Election Day has come and gone, political tensions are still running high. That means employers need to prepare for the possibility of partisan conflict among new workers brought on to meet increased holiday demand.

"That ongoing discussion that employees have going into the election increasingly in these modern times might continue through the holiday season and potentially after the New Year, depending on how all of this goes," said Cameron Fox, a partner at Paul Hastings LLP who represents employers.

Fox said employers would do well to look to the post-election experience of 2016 for lessons that can be applied in the wake of this year's vote.

One of those lessons, Fox said, is that it can be difficult to separate "purely political" discussions that aren't protected under laws like the National Labor Relations Act from those that touch on terms and conditions of employment and therefore may have protected status.

Given the ambiguities of federal law, Joyce Smithey of Smithey Law Group LLC recommends paying close attention to state and local statutes, which sometimes provide stronger protections for political speech in the workplace.

The Washington, D.C.-based attorney said private employers have become more active in recent years in terms of setting boundaries around what they're willing to tolerate in the workplace. But she recommends management take a flexible stance on workers talking politics, as long as it doesn't interfere with the normal course of business.

"We're picking up the newspaper and reading about people who are getting fired after attending protests and rallies," Smithey said. "I think the only time employers really need to be concerned about it in the private sector is when they see that it's disrupting people's job performance."

--Editing by Alanna Weissman and Nicole Bleier.

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