As COVID-19 continues to spread throughout the
United States, there has been a massive upheaval of the American workplace. Employers
have found themselves drafting and implementing policies and procedures
addressing a wide array of issues including remote work, layoffs, furloughs,
pay cuts, workplace conditions and many more. Not surprisingly, the uncertainty
wrought by COVID-19 has left employers at an increased risk of exposure to
employment-related claims alleging wrongful termination, discrimination,
retaliation and many others.
This Risk Insights piece will serve as a
guide to the most common potential causes of action related to COVID-19 that may
lead to employment-related litigation. As is the case with all inherently legal
issues, employers are strongly recommended to seek the guidance of legal
counsel when faced with any of the claims discussed herein.
Workplace Health and Safety
There have already been a multitude of safety violation claims
filed under the Occupational Safety and Health Act (OSHA) and state equivalents.
These safety violations typically allege that an unsafe workplace has caused
sickness and/or death due to COVID-19, or that an employer failed to take
appropriate measures to reduce COVID-19 exposure and spread within the
workplace. Such “appropriate measures” might include failure to provide hand-washing
stations, sanitizers, masks or adequate protective gear on location. Other
claims have alleged that employees have been unable to practice social
distancing due to the nature of their jobs.
Leave Claims (FMLA and
FFCRA)
In addition to traditional paid and sick
leave, COVID-19 spurred the passing of the Families First Coronavirus Response
Act (FFCRA), which includes the Emergency Family and Medical Leave Expansion
Act and the Emergency Paid Sick Leave Act. The FFCRA requires employers with
500 or fewer employees to give employees expanded paid family and medical leave,
and emergency paid sick leave.
Without analyzing the unique provisions of
the FFCRA, it must be noted that the Act expressly incorporates existing Family
and Medical Leave Act (FMLA) and Fair Labor Standards Act (FLSA) remedies
provisions. This means that an employee who is wrongfully denied expanded leave
or not paid during the leave will have a cause of action to recover damages
(lost wages, salary, benefits and other compensation) or actual monetary losses
resulting from the denial of leave (e.g., the costs of child care), with
interest. Likewise, employers that fail to comply with the Expanded Paid Sick
Leave Act will be made liable to remedy provisions under the FLSA.
Given the extensive exposure, employers
should consider speaking with legal counsel in order to update and implement
leave-related policies. Employers might also consider training their managers
and supervisors on updates to the policies and laws, as they will be on the
front lines when dealing with leave-related issues.
Wage and Hour Claims
With employees being asked to work from home,
and employers restructuring their workforce (including salaries and
compensation) to fit their current needs, it’s vital to remember that this reshuffling
can give rise to claims under the FLSA and applicable state laws related to
salary and hours reductions. Altering work arrangements and compensation
structure may be necessary to keep some organizations afloat, but such changes may
inadvertently alter the classification status of their workers. Such
classification issues may lead directly to an FLSA claim.
Discrimination Claims
Numerous federal and state laws protect
employees from discrimination based on protected class characteristics.
Laid-off or furloughed employees may bring claims under federal and state
anti-discrimination laws, challenging the purported reason they were selected
for an adverse employment action. Employers should be careful to use objective
means when deciding which employees to lay off or furlough. They will also want
to retain records of the criteria used, and, in certain instances, evaluate
whether any disparate impact may result from the decision.
Employees might also bring a claim based on
an employer’s failure to reasonably accommodate employees with a bona fide
disability related to COVID-19. Such claims might even be based on a denial of
a request to allow an employee to work from home.
Retaliation Claims
Most state and federal laws contain
provisions that make it unlawful for employers to retaliate against employees who
exercise their protected legal rights or oppose unlawful employer actions. For
instance, there have already been numerous claims that allege retaliation for
objecting to unsafe working conditions and exposure to individuals with
COVID-19 symptoms in the workplace. Other retaliation claims may arise out of
an employee complaint that the employer wrongfully denied a request for leave.
The most important practice in insulating
your business from a retaliation claim is documentation. Extensively
documenting the employer’s reasoning behind their employment decisions can be
the difference between a successful retaliation defense and a costly judgment.
Wrongful Termination
Claims
With the major increase in employee
furloughs and layoffs, it is no surprise that there has been an increase in
wrongful termination claims. Wrongful termination claims can arise out of a
multitude of COVID-19-related issues. One example is a claim that the employee
was terminated for complaining about a lack of personal protective equipment.
Another example would be a claim that the employee was terminated for lodging a
complaint about co-workers with COVID-19 symptoms reporting to work.
To mitigate the potential for a wrongful
termination claim, employers should proceed carefully upon receiving employee
complaints. Employers should also maintain meticulous records of complaints,
the investigation process and the ultimate reasoning behind the termination.
Disclosure of Confidential
Information Claims
Because the Centers for Disease Control and
Prevention (CDC) and state/local health authorities have acknowledged community
spreading of COVID-19 and issued precautions, employers have been allowed to
measure employees' body temperature. However, this newly expanded testing
capability exposes the employer to an array of privacy-related issues.
In order to maintain the privacy of COVID-19-related medical
documents, the ADA requires that all medical information about a particular
employee be stored separately from the employee's personnel file. An employer
may store all medical information related to COVID-19 in existing medical
files. This includes an employee's statement that they have the disease or
suspect they have the disease, or the employer's notes or other documentation
from questioning an employee about symptoms.
Conclusion
These are just a few examples of the most
common types of claims that may arise as a result of COVID-19. It is imperative
that employers are aware of these potential issues and proceed accordingly. Moving
forward, employers should consider the following:
1.
Develop a return-to-work plan
that contemplates federal and local safety guidance (e.g., CDC, OSHA and state
health authorities) on personal protective equipment, workspace hygiene, social
distancing measures and many others.
2.
Consult with legal counsel
when implementing (or updating) policies and procedures to ensure compliance.
Ensure counsel is also present when undergoing recall, rehire and job offers,
as this stage is the epicenter for multiple employment-related claims.
3.
Ensure that those
policies and procedures are implemented in a fair and equal manner.
4.
Ensure proper
communication to all employees, particularly the line managers who will be
responsible for implementation.
5.
Maintain the confidentiality of
all medical-related information provided by employees in compliance with
federal and state guidance.
6.
Train managers and
supervisors on new policies and procedures drafted in the wake of COVID-19.
7.
Regularly monitor
new federal, state and local guidance, as well as legislative enactments.
Contact Better Business Planning, Inc. today for more risk management guidance.
Source: Zywave, 2020.
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