Since the COVID-19 crisis began, employers have been faced with a myriad of tough decisions, compounded by rapidly changing state, local and federal guidance on how to make them. These decisions have included whether to stay open, whether to allow employees to work remotely, whether to furlough or lay-off employees, how to protect employees and customers during the pandemic, and whether and how to accommodate and compensate employees who were unable to work because they were sick with coronavirus or for other coronavirus-related reasons. As states have begun to ease lockdown restrictions and those businesses that have survived begin to re-open, employers must now grapple with whether, how and when employees will safely return to the workplace. Amid all of the legal and logistical uncertainty, the unemployment rate is near unprecedented levels at 13.3 percent, with over 20 million people unemployed. Those employees who have been fortunate enough to keep their jobs or return to work are confronted with a very different and challenging work environment – hours have been cut, pay has been slashed, responsibilities are greater, and job security is far from guaranteed.
The severe economic downturn, high rate of unemployment, uncertainty, risk and fear are fodder for what will certainly be an explosion of COVID-19 related employment lawsuits. As we move forward into the “new normal,” employers must be prepared to recognize the risks of such claims and lawsuits, mitigate those risks whenever possible, and be prepared to defend the actions and decisions they took during the COVID-19 pandemic. Below, we will summarize the most likely COVID-19 related claims that employers will be confronted with and offer some practice pointers to help employers avoid those claims before they arise.
What Kinds of Claims Can Employers Expect?
• Whistleblowing/ Retaliation/ Wrongful Discharge: This will be a fertile area of claims as both state whistleblower statutes and anti-retaliation provisions in state and federal employment laws prohibit taking retaliatory employment action against an employee who engaged in certain protected activity, including objecting to, or refusing to participate in an activity, policy or practice which is in violation of a law, rule or regulation. Whistleblower claims are likely to take new shape as more and more employees who face demotions, terminations, and reductions in schedules or pay will assert that their reports about their employer’s failure to follow legal protocols with respect to safety measures in this COVID-19 climate were the cause of those personnel actions. Similarly, employees who seek COVID-19 related benefits under or complain about COVID-19 related violations of the various employment laws (FFCRA, ADA, discrimination laws, etc.) and are subjected to adverse employments actions may assert retaliation claims under those statutes.
• Unsafe Working Conditions: These claims, brought under the federal Occupational Safety and Hazard Act (OSHA) and state workers’ compensation laws, will include allegations that unsafe workplaces have caused sickness and/or death due to COVID-19, that employers have failed to take appropriate measures to adequately clean and sanitize workplaces, and that employers have failed to provide necessary personal protective equipment, adequate handwashing areas and sanitizing dispensers, or enforce social distancing protocols.
• Disability Discrimination: Disability discrimination claims, brought under state and federal statutes, will include allegations related to forced leaves of absence, alleged failures to accommodate (including denial of requests to work from home), and requests for leave due to COVID-19 concerns.
• Disparate Treatment and Impact Discrimination: Employers will be faced with disparate treatment discrimination and retaliation lawsuits in regard to any layoff, furlough or separation decisions made due to the COVID-19 pandemic should an individual feel that he/she was selected for layoff or separation based upon a protected characteristic or based upon some type of protected complaint made in the workplace. Likewise, employers should anticipate being faced with disparate impact discrimination lawsuits if the adverse employment decision disproportionately impacted a protected class, even if the employer did not intentionally discriminate.
• Family and Medical Leave Act (FMLA)/Families First Coronavirus Response Act (FFCRA): These claims will involve alleged failures to provide required leave related to COVID-19 and will include issues of determining eligibility of workers for paid leave and paying leave in the required manner and at the required rate. Additionally, even if an employer administers paid leave under the FMLA/FFCRA correctly, it is likely employers will face lawsuits alleging they retaliated against employees who requested and/or took paid leave.
• Wage and Hour: These claims, which will also be the bases for many class actions, will involve allegations of failure to pay for hours worked prior to business closures due to COVID-19 concerns. It is also anticipated that wage and hour lawsuits will ensue related to remote work by nonexempt employees, as well as time spent completing health screenings, temperature checks and/or other tests mandated by employers as they reopen.
• Worker Adjustment and Retraining Notification Act (WARN): Claims for violations of state and federal WARN Acts, which also will be asserted as class actions due to large employer penalties and fee shifting provisions, will involve allegations of layoffs without required WARN notices.
• Consolidated Omnibus Budget Reconciliation Act (COBRA): These claims will involve allegations of failures to provide COBRA notices and/or providing defective COBRA notices.
How Can Employers Protect Themselves?
This is a complex and rapidly-changing environment. It is important for employers to be aware of the employment litigation trends in order to be in the best position to avoid claims. Although there is no way to completely eliminate the risk of litigation, complying with the following best practices now will mitigate employers’ exposure to COVID-19 related employment claims:
• Ensure relevant policies are up to date, including, but not limited to, policies related to anti-harassment, anti-discrimination and anti-retaliation, the FMLA, the Emergency Paid Sick Leave Act and Family and Medical Leave Expansion Act under the FFCRA (if fewer than 500 employees), interactive process/reasonable accommodation procedures, and remote working. Contact Ansa Assuncao attorneys for assistance in reviewing/updating any of these policies. See sample EPSL/FMLA Policy at https://www.ansalaw.com/sample-emergency-paid-sick-leave-and-fmla-public-health-emergency-leave/.
• Educate and train management and HR professionals on the above policies and the appropriate steps to take if an employee requests to utilize the policies or complains or expresses concerns about noncompliance with the policies.
• Prepare a COVID-19 workplace safety plan, communicate the plan to all employees, ensure compliance with the plan, investigate and address any reported concerns and document the investigation process and outcome. Contact Ansa Assuncao attorneys for assistance in reviewing/preparing a COVID-19 workplace safety plan to ensure compliance with local, state and federal guidelines. See sample COVID-19 policy for non-retail employers at https://www.ansalaw.com/sample-coronavirus-covid-19-policy-for-non-retail-businesses/.
• If conducting health screenings, temperature checks or other testing, ensure compliance with social distancing requirements and confidentiality with regard to any records created.
• Document steps taken after an employee reports a positive and/or presumptive COVID-19 diagnosis and comply with all state guidelines and CDC recommendations on quarantine timeframes and return-to-work parameters.
• If adjusting compensation or reducing the workforce, provide appropriate notices and ensure selection criteria is nondiscriminatory. When proceeding with personnel actions, make sure that appropriate documentation exists leading up to and through the date the action is taken that demonstrates that the personnel action is unrelated to any protected activity such as complaining of a failure to follow OSHA guidelines or requesting leave pursuant to the FFCRA. This documentation will be key in responding to and defending against employment law claims.
Melissa R. Lock is Of Counsel in the firm’s Philadelphia office and Chair of the firm’s Labor and Employment practice. She can be reached at 215-292-2103 or [email protected] Ansa Assuncao, LLP will continue to monitor the rapidly developing COVID-19 situation and provide updates as appropriate. For further information or assistance, contact your Ansa Assuncao attorney or any member of our COVID-19 Response Team. You can also review our COVID-19 Resources at https://www.ansalaw.com/covid-19-resources/.