Avoiding Potential Employer Liabilities as Workers Return

As states and municipalities chill out safer-at-home measures, shops, eating places, workplaces, producers, and different employers throughout the nation are both re-opening for enterprise or returning their workers from distant work. Regardless of the very best of intentions to adjust to seemingly ever-changing legal guidelines, orders and company steering, many companies fear about whether or not there shall be an upsurge within the variety of worker lawsuits or claims arising from the COVID-19 pandemic. This text identifies the most probably forms of claims that could be seen by employers and describes steps employers can take to handle their danger.

1. Discrimination, Retaliation and Harassment Claims

Again in March, choices relating to closures and the ensuing layoffs and furloughs have been made in a little bit of a rush. In conditions the place lower than a complete workforce was despatched dwelling, hopefully, choices about which workers have been chosen for layoff or furlough have been made rigorously, with consideration paid to the relative expertise, efficiency, and job features of every worker. Employers now returning workers to work—or to the office in phases—face the identical choices, and could also be second-guessed in the event that they deal with workers in another way based mostly on impermissible causes. The Equal Employment Alternative Fee (EEOC) has made clear that employers might not make assumptions about their workers’ ages, capability to telework, recognized or perceived disabilities, or suspected vulnerabilities when making these choices. Even choices made out of benevolence towards workers could also be deemed discriminatory on reflection in the event that they have been made based mostly on these paternalistic assumptions. Thus, employers ought to keep away from blanket exclusions for people perceived as susceptible when creating and implementing return-to-work insurance policies.

Staff adversely affected by such a reduction-in-force choice can also allege that the choice was pretextual to get rid of workers with protected traits. In different phrases, they could declare that their employer used the furlough or layoff course of as an “excuse” to eliminate workers in sure age, race, nationwide origin, gender or different protected classes. Employers making layoff or phased return-to-work choices ought to, due to this fact, take care to “audit” their lists of affected workers to find out if sure teams have been adversely impacted.

Employers can also not retaliate or discriminate towards workers for requesting or taking go away beneath the Households First Coronavirus Response Act (FFCRA), the Household and Medical Depart Act (FMLA), or for voicing considerations about office security.

Lastly, employers ought to be on guard towards potential harassment claims, particularly in gentle of experiences that individuals of Asian descent have been the goal of harassment arising from the suspected origin of the novel coronavirus. Employers who’re discovered to have recognized about (or ought to have recognized about, with correct vigilance) illegal harassment might be discovered accountable for this harassment.

Employers who unlawfully discriminate or retaliate towards workers in these methods might face claims beneath a bunch of legal guidelines, together with the Household and Medical Depart Act, the People with Disabilities Act, Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, or state employee’s compensation legal guidelines.

2. Incapacity Failure-to-Accommodate Claims

Whereas employers mustn’t assume that an worker can not work based mostly on the person’s recognized or perceived incapacity, they need to perceive that they do have an obligation to have interaction in an interactive course of with workers who request an lodging attributable to a incapacity. This responsibility to supply affordable lodging exists beneath each the federal People with Disabilities Act (ADA), which applies to employers with 15 or extra workers, and the state Wisconsin Honest Employment Act (WFEA), which applies to employers with a number of workers.

Within the COVID-19 context, the responsibility to accommodate arises when an worker requests go away or one other lodging as a result of his or her present incapacity makes her or him significantly susceptible to COVID-19 or the incapacity is exacerbated by the specter of COVID-19 or the protection precautions taken. For example, an worker might have diabetes or a coronary heart or lung situation which locations her or him in elevated hazard if she or he have been to contract COVID-19. One other worker might request an lodging as a result of his or her identified panic and anxiousness dysfunction is exacerbated when she or he works in shut proximity with different individuals. Nonetheless one other worker might have claustrophobia or bronchial asthma which makes complying with a face masks requirement tough or not possible. In these conditions, the legislation requires the employer to have interaction in an interactive dialogue with the worker, and probably the worker’s medical suppliers, to find out what affordable lodging, if any, might be made for the worker. Examples of such lodging might embody telework (the place attainable), further bodily limitations from different staff, and even restricted go away in some circumstances. Once more, analyses of such requests and attainable lodging ought to be undertaken on an individualized foundation, ideally with skilled employment counsel.

3. Failure to Defend Claims

Employee’s Compensation: Staff who maintain damage in the course of the course and scope of their employment might make claims beneath state employee’s compensation legal guidelines. In most such claims, it is going to be considerably difficult for workers to show they contracted the coronavirus whereas at work, moderately than by means of different means, similar to using public transportation or purchasing on the grocery retailer. In Wisconsin—with the notable exceptions of emergency well being care staff and first responders—such workers must show causation, which can be a bar to many claims.

OSHA: In keeping with the final responsibility clause of the Occupational Security and Well being Act (OSH Act), employers are required to supply their workers “a spot of employment that are free from acknowledged hazards which can be inflicting or are more likely to trigger demise or critical bodily hurt to his workers.” The federal Occupational Security and Well being Administration (OSHA) can cite employers for violating the final responsibility clause if there’s a acknowledged hazard and they don’t take affordable steps to stop or abate it.

Monitor Printed Steering: Employers ought to recurrently monitor OSHA and CDC steering to make sure that they’re following essentially the most present suggestions from each businesses, based mostly on their explicit trade and circumstances. Whereas many employers might view such steering as not “the legislation” however moderately solely urged (and thus non-obligatory) suggestions, they need to remember that an OSHA investigator will probably not look kindly on an employer who refuses to implement well-publicized suggestions.

Develop a Formal Return-to-Work Plan: If employers haven’t already achieved so, they need to develop and implement formal return-to-work plans addressing things like PPE and social distancing expectations, sanitation procedures, worker questionnaires and/or temperature testing, dealing with of holiday makers, and protocols for coping with workers or guests who check optimistic for COVID-19 or who report being in shut contact with somebody who has examined optimistic. Employers ought to recurrently replace such plans when vital, make sure that all necessities are adopted by workers and guests alike, and promptly examine all complaints of non-compliance. Such plans will help employers who should defend towards claims alleging that they didn’t present ample security precautions for workers.

4. Failure to Defend Worker Privateness and Abide by Confidentiality Necessities

In printed steering, the EEOC has directed that whereas ordinarily, medical questionnaires required of workers or temperature testing could be impermissible beneath the ADA, they’re allowed within the COVID-19 context because of the direct risk posed by the pandemic to the well being and security of workers. Consequently, many employers have applied symptom-monitoring protocols for workers, which vary from self-monitoring and reporting to employer-imposed temperature checks. Whereas gathering such info is permitted beneath the legislation, employers ought to take ample steps to make sure that it’s protected as confidential worker medical info. Meaning employers ought to deal with and retailer such info simply because it does all different worker medical info it receives—i.e., in recordsdata separate from worker personnel recordsdata with restricted entry by different workers.

5. Denial or Miscalculation of Sick or Household Depart

For personal employers with fewer than 500 workers, the FFCRA supplies paid go away for workers who want day off to look after themselves or a member of the family affected by COVID-19, or the place a toddler’s faculty or childcare is unavailable attributable to COVID-19. At the same time as summer season has arrived, summer season childcare choices could also be restricted, and lots of areas of the nation are experiencing elevated optimistic exams for COVID-19. Thus, workers might proceed to request go away beneath the FFCRA. Employers should keep in mind that the FFCRA is in place till the tip of 2020, and they need to be cognizant of their obligations beneath the legislation.

Staff might convey actions beneath the federal Honest Labor Requirements Act (FLSA) based mostly on denial or miscalculation of FFCRA go away pay. As now we have beforehand suggested in our FFCRA Laws article, employers mustn’t assume that the FFCRA doesn’t apply to them just because they’ve fewer than 50 workers. The exception for small employers doesn’t apply to worker requests for emergency sick go away however solely to requests for go away attributable to faculty or childcare unavailability—after which applies solely in outlined circumstances that ought to be analyzed on a case-by-case foundation.

6. Wage and Hour Claims

In an effort to adjust to safer-at-home orders and guarantee social distancing, many employers needed to make sudden adjustments to their workforces with little discover or preparation. Many started permitting non-exempt workers to telework for the primary time. Some might have been pressured to vary the compensation buildings of exempt workers for financial causes. Others might have required workers to spend time making ready for work in further methods associated to COVID-19 (e.g., cleansing and donning PPE or aiding with cleansing work areas earlier than or after their shifts).

Whereas these adjustments got here on all of the sudden, employers ought to at all times keep in mind that the wage and hour legal guidelines pertaining to minimal wage and extra time necessities nonetheless apply. Employers ought to evaluation their timekeeping procedures and compensation buildings with a watch towards the next questions:

Are non-exempt workers who’re working from dwelling adequately monitoring and reporting their time?

Have non-exempt workers been instructed as to their begin and finish instances every day? Are they permitted or anticipated to work exterior of these instances? Do they test and reply to emails and voicemails at different instances?

Are non-exempt workers anticipated to scrub work areas off the clock? Are they spending greater than a de minimis period of time off the clock cleansing, donning or doffing PPE?

Are the salaries of exempt workers impermissibly “docked?”

Have exempt worker salaries been lowered beneath the relevant extra time exemption thresholds?

Have any compensation reductions resulted in minimal wage violations?

7. Federal and State WARN Violations for Mass Layoffs or Closings

The federal Employee Adjustment and Retraining Notification Act (WARN Act) and its state counterpart, the Wisconsin Enterprise Closing and Mass Layoff Legislation (Wis-WARN), have been each enacted to require sure employers to supply workers with written discover previous to a everlasting or non permanent shut down or mass layoff of an employment website, facility, or working unit, in an effort to assist affected workers put together for brand new employment. (The federal WARN Act applies to companies with 100 or extra workers, whereas Wis-WARN applies to employers with 50 or extra workers. These legal guidelines have differing triggering thresholds for the required notices that are described in our Telework, Shortened Work Schedules, Layoffs, and Worksite Closures: Dealing with Employment Interruptions within the Age of COVID-19 article.

Importantly, each legal guidelines have a variety of exceptions, amongst them one for layoffs or closings brought on by “unforeseeable enterprise circumstances.” The legal guidelines additionally typically don’t apply within the case of a short-term furlough (moderately than lay-off) of workers. Whereas these exceptions might nicely have been met again in March if the closing or layoff was the sudden results of compliance with a state or municipal safer-at-home order, or if a furlough was initially anticipated to be of brief period, these legal guidelines might change into relevant sooner or later. Furloughs might flip into everlasting layoffs or one other massive reduction-in-force could also be necessitated by the continued financial downturn. Employers have to be cognizant of each legal guidelines’ necessities to keep away from inadvertent missteps within the occasion that one or each legal guidelines apply sooner or later.

8. NLRA Claims and OSHA “Whistleblower” Claims

NLRA Claims: Many employers consider that the Nationwide Labor Relations Act (NLRA) doesn’t apply to them just because they don’t have a union. Nevertheless, Sections 8(a)(1) and eight(a)(3) of the NLRA prohibit employers from retaliating towards an worker for, amongst different issues, taking part in “concerted exercise”—whether or not or not it’s union exercise—as long as it’s achieved for the aim of collective bargaining or different “mutual assist or safety.” Thus, if an worker makes a grievance, both with different workers or on their behalf, in an effort to enhance working phrases or situations, that exercise could also be protected. Discharging or taking antagonistic employment motion towards workers who have interaction in such exercise can result in critical authorized danger. In a latest Nationwide Labor Relations Board (NLRB) choice, Maine Coast Regional Well being Services, 369 NLRB No. 51, (March 30, 2020), the NLRB held that healthcare staff who have been terminated for voicing considerations about working situations in well being care amenities might have a retaliation declare beneath the NLRA.

OSHA Whistleblower Claims: Part 11(c) of the OSH Act prohibits employers from retaliating towards workers for exercising their rights beneath the statute, together with elevating a well being or security grievance with OSHA. 29 U.S.C. § 660(c). The protections contained in Part 11(c) apply to workers who report conduct they moderately and in good religion consider violates the OSH Act. Though Part 11(c) doesn’t present for a personal reason behind motion, workers can submit a grievance to the Secretary of Labor. After investigating the worker’s grievance, the Secretary of Labor can sue the employer in federal court docket on the worker’s behalf and search reduction together with reinstatement, again pay with curiosity, compensatory damages, punitive damages, and different acceptable reduction.