Employers across the country already are being sued by current and former employees as a result of COVID-19. These lawsuits come from many
angles including paid leave requirements, disability accommodations, and concerns over workplace safety.
The cases below highlight issues employers should consider:
FFCRA IMPLEMENTATION AND FMLA FOR COVIDCOVID-19 DIAGNOSES.
There is risk to implementing your own paid leave requirements for COVID-19 symptoms when you’re not covered by FFCRA.
A large grocery chain is currently facing a lawsuit by an employee who claims the company rejected her claim for leave under the Families First Coronavirus Response Act (FFCRA).
The company has over 500 employees and is not covered under the FFCRA. However, the employee claims since the grocer voluntarily implemented a paid leave policy for COVID-19 related issues aligned with FFCRA guidance, the grocer effectively opted into the FFCRA requirements.
While it is hard to see how an employer excluded from a law’s coverage could be held liable under the law and it is unlikely the employee will succeed on her FFCRA claim, don’t forget about the FMLA! This employee is also alleging the company violated the Family and Medical Leave Act (FMLA). Employers should keep in mind a COVID-19-related medical concern that qualifies as a serious health condition under the FMLA may entitle employees to FMLA protections while recovering.
NOT DOING ENOUGH TO PROTECT EMPLOYEES FROM COVID-19
Implementing workplace pandemic guidelines is key!
Walmart is facing a wrongful death case filed by the family of a deceased Walmart employee in Illinois. The family claims Walmart failed to take appropriate precautions regarding cleaning and
providing personal protective equipment, and failed to handle symptomatic employees appropriately, including by warning other workers of positive COVID-19 cases.
Smithfield Foods was likewise sued in federal court in Mississippi where employees sought relief for Smithfield Foods’ alleged failure to comply with CDC guidelines and implement appropriate PPE guidelines. The court already dismissed this lawsuit on the basis that these concerns should have been brought through the Occupational Health and Safety Administration’s reporting process.
Employers who are operating or considering returning employees to work soon should implement a written infectious disease policy. This policy should cover social distancing and wearing masks and other personal protective equipment (PPE). The policy should also require employees to notify management of when they travel outside the region, become symptomatic, and are potentially exposed outside the workplace.
Don’t forget confidentiality!
While employers may want to go above and beyond when notifying employees about potential workplace exposures, they are not required and do not need to release information that would allow other employees to identify the infected employee. Employee medical information is always confidential. While employers must keep up with CDC and department of health guidance on workplace safety, they cannot dismiss longstanding principles about medical information and employee diagnoses.
SUSCEPTIBLE EMPLOYEES AND DISABILITY CONCERNS
COVID Employees are requesting leave as an accommodation for susceptibility to COVID-19.
As with any accommodation, employers should engage in the interactive process to determine whether there is a reasonable accommodation that would enable the employee to perform the essential functions of the job. If you have provided accommodating work arrangements in the past, such as a different or altered work setting, restructured hours, or telework, an employee may expect the same for his or her current situation.
The ADA also allows an employer to conduct a “direct threat” analysis, which may justify an employee’s exclusion from the workplace if he has a preexisting, underlying condition that places him at higher risk for severe illness from COVID-19.
This would be an individualized analysis considering the degree of COVID-19 infection rates in a particular area or susceptibility of the industry, as well as the individual employee’s health. An employee is not considered a direct threat if the employer can reduce or eliminate the direct threat through a reasonable accommodation. This is why engaging in the interactive process is key. (https:// www.eeoc.gov/wysk/what-you-should-know-about-covid-19 -and-ada-rehabilitation-act-and-other-eeo-laws)
Employers should be cautious when making disability- related inquiries or assumptions about particular employees based on their age or potential health conditions.
WAGE, HOUR, AND PAYROLL CONCERNS
Time spent putting on and removing PPE may be compensable.
Correctional officers in Cook County, Illinois filed a proposed class action seeking compensation for time spent sanitizing their uniforms and vehicles, as well as showering extensively.
As employers implement PPE requirements, they should consider how much time employees spend putting on and removing their PPE, cleaning their PPE, and/or showering or sanitizing before entering and leaving the workplace. This time may be considered working time that is compensable under the Fair Labor Standards Act (FLSA) or state wage and hour laws.
Pay shortages as a result of limited cash flow need to be addressed quickly.
Hair Cuttery, a salon in Delaware, ultimately filed for bankruptcy after facing claims over delayed, underpaid, or non-paid paychecks for the days leading up to COVID-19 closures.
The Department of Labor has stated it has seen an increase in complaints about missing payroll. In addition to federal minimum wage concerns, employers should consider state wage and hour implications, pay-date requirements, and forfeiture concerns.
DISCRIMINATING DURING COVID-19
Did COVID-19 lead to national origin discrimination?
A benefits administration company, The Taben Group, is facing an Equal Employment Opportunity Commission Charge of Discrimination from employee Nina Nguyen, who claims she was singled out for somehow creating a bigger risk of transmitting COVID-19 simply “because she is Asian.” She alleges she was directed to stay six feet from her white coworkers but they were not advised of the same.
Title VII of the Civil Rights Act prohibits discrimination against employees because of their national origin. COVID-19 pandemic concerns are no exception. Making assumptions about an employee’s risk of contagion merely because of her Asian ethnicity is discrimination. Employers also need to be extremely clear with employees that treating other employees differently because of their national origin may result in disciplinary action up to and including termination. Such conduct by coworkers could result in hostile work environment claims.
Can layoffs be discriminatory?
Shearman & Sterling was sued last week by its former Global Manager of Facilities who claims he was selected in Covid-19-related furloughs “because of his age” (62). He claims he was only recently promoted in 2019, had no negative performance reviews, and was selected because the company needed to reduce costs and cut jobs, which impacts long-term (and generally older) employees the most.
As employers try to reduce the weight of payroll during COVID-19, they should develop a fair and non- discriminatory workforce reduction process. There are many non-discriminatory options to consider including, seniority, performance, essential services, and credentials or qualifications. To avoid any disparate impact claims, employers should engage in an EEO impact analysis of tentative decisions to ensure their process does not have a disparate impact on protected classes.
PUBLIC EMPLOYERS AND FIRST AMENDMENT CLAIMS.
Employees are speaking out about COVID-19 issues.
Indiana University of Pennsylvania is facing a lawsuit by its former Director of Facilities, Donald Woolslayer, who sent an email to employees notifying them to take necessary precautions and quarantine because another employee’s spouse tested positive for COVID-19. Woolslayer claims management and human resources advised him not to alert employees or to tell them to take what he thought were necessary precautions. He disregarded their instructions and informed employees anyway. The University terminated Woolslayer the next day. Woolslayer filed suit in federal court under both the First and Fourteenth Amendments.
Public employers should tread carefully when employees voice concerns related to COVID-19 in the workplace. These concerns could be considered matters of public concern protected by the First Amendment.
Furthermore, the National Labor Relations Act (NLRA) prohibits employers from taking adverse action against employees who engage in “protected concerted activity,” which can include “speech” across a variety of media.
If more than one employee expresses concern about workplace issues, orally, in writing, or digitally through electronic or social media platforms, that activity likely is protected. Public employers need to consider carefully methods of communication and grievance procedures.
Our firm has been engaged to handle a labor arbitration involving an employee who was discharged for violations of workplace safety and health measures instituted in the wake of the pandemic.
In unionized work settings, employees who are disciplined or discharged for violating COVID-19 – related health, safety, or other protocols typically have the opportunity to pursue a challenge through grievance and arbitration provisions in collective bargaining agreements.
LIABILITY PROTECTIONS FOR EMPLOYERS FROM COVID-19 RELATED LAWSUITS
Congress is being pressured by various industry groups for laws that limit an employer’s liability from claims related to COVID-19 exposures. Senate Majority Leader Mitch McConnell (R-Ky.) advocated for limiting COVID-19-related liability for all employers regardless of size.
Nothing is set in stone yet. As such, employers should assess their potential liability from all angles and develop safety guidelines and return-to-work policies that are consistent with CDC and Department of Health guidelines.
Employers should also carefully consider an exposure-response plan and, if an employee tests positive, should consider these six steps: “Six Steps to Take if an Employee Tests Positive for COVID-19.”
Further resources: The EEOC’s “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”
The Woods Rogers Labor & Employment team is always here to guide employers as they manage their workplaces through social distancing and remote work, implementing new sick leave laws, and applying for loans and grants to continue operating—all while considering the legal challenges they confront.
The attorneys at Woods Rogers are continuously updating our legal blog with topics relating to the COVID-19 coronavirus outbreak. You can find these articles at woodsrogers.com/covid19.
Woods Rogers has created a Pandemic Response Group of attorneys who are available to answer any specific questions or concerns about your obligations or potential liabilities in a range of different practice areas, such as contract law, labor & employment, construction law, cybersecurity, tax, employee benefits, and commercial litigation. We stand willing and able to assist you during these difficult times.
Patrick Bolling Associate
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