As the world fights to reduce exposure to the coronavirus, employers should be thinking about how to limit their legal exposure to a host of issues brought to fore by the ongoing health pandemic and economic crisis. Although it may already be several weeks since many non-essential employers have pivoted towards remote work arrangements where feasible, companies are beginning to be named as defendants by employees for failing to ensure their safety. Essential workers have filed class actions against their employers for a failure to provide necessary personal protective equipment (“PPE”). Others, including a coalition of workers from Target, Amazon, and Walmart have planned to go on strike to protest what they say are unsafe working conditions because of a lack of company-supplied PPE and a demand for hazard pay. Employees who became ill have also been left wondering whether they contracted an illness while at work, or during the commute before work from home instructions were implemented, and whether their employer may be liable as a result.
Under the Federal Occupational Safety and Health Act (“OSHA”), employers have the responsibility to provide a safe workplace. In late February and early March, our understanding of how COVID-19 is transmitted was rudimentary and for most, it was business as usual. Social distancing was not yet part of our lexicon. Now, in several states including New York, states have issued orders requiring people to wear masks or face coverings in public settings. In order to protect employees, companies are advised to take affirmative steps to implement plans not only to ensure employees have necessary protective equipment, but to have policies and procedures in place for the identification and isolation of sick people. When employers do not—or failed to take reasonable steps to do so—they may be in violation of OSHA’s general duty clause. Employers should be prepared to defend an increase in whistleblower claims as employees raise complaints regarding workplace safety. Having a designated representative to receive and investigate such complaints (as confidentially as possible) may help stave off retaliation complaints.
Companies considering layoffs or furloughs should consider whether they will trigger federal notice requirements under the Workers Adjustment Retraining Notification Act (“WARN”) or similar state laws. Some states have issued executive orders and the like suspending notice requirements for closures due to the pandemic.
Employers would also do well to consider the likelihood that a reduction in workforce and furloughs will lead to an increase in employment discrimination filings. Even in the best of times, companies must determine appropriate selection criteria for layoffs or furloughs and review a preliminary list of selected employees to determine if there is any adverse impact for protected classes, including race, religion, age, and disability. Some states have additional protected classes. Additionally, employers should perform the same analysis when deciding who may be rehired or brought back from the furlough and who will not be. With unemployment filings already at unprecedented levels, and people possibly losing health insurance during a global health crisis, employment discrimination claims—legitimate or otherwise—are likely to increase in the months ahead.
The same may be said about wage and hour claims, especially claims for back overtime, which employees often raise for the first time after they have been fired. However, employers should consider the additional time non-exempt workers may spend due to safety precautions. These may include waiting on longer lines for entrance checks or elevators while social distancing remains in effect, time for properly washing hands and disinfecting work areas, and donning and doffing personal protective equipment, or submitting to medical examinations, including temperature checks. This time may be compensable.
Employers should also be mindful of gender disparities regarding workload, assignments and flexibility. This is particularly the case for working mothers who generally are perceived, or believe they are perceived, as bearing a disproportionate amount of childcare responsibilities, which, have increased dramatically during this pandemic.
There are also a host of legal pitfalls likely to arise as the stay at home orders are lifted and employers begin reopening workplaces. It is not hard to imagine employees expressing hesitation when the doors reopen. Some employees may have health conditions (including mental health) that were not previously reported to employers, but which could impact their willingness or ability to return to work. They may seek to work from home or which to take a leave of absence. These requests may be considered requests for “reasonable accommodations” under the disability discrimination laws and need to be properly vetted. The disability discrimination laws also govern medical examinations and employee confidentiality so employers that choose to conduct temperature checks or request any other information, such as test results should consult the guidance from the Equal Employment Opportunity Commission and the Center for Disease Control.
While the allure of returning to normalcy as quickly as possible increases by the day, companies must be deliberate with their choices and take appropriate steps to limit their legal exposure caused by COVID-19. Hoguet Newman Regal & Kenney is continuing to monitor legal developments concerning the ongoing crisis, and we are available to counsel employers through the current hardship as we all look forward to more stable times ahead.
Steven M. Silverberg is a litigator whose practice primarily involves class actions, civil rights, and internal investigations. Among other things, Steve was part of a team that conducted a sensitive internal investigation into a ...
Randi B. May represents employers and executives in all aspects of the employment relationship. She focuses on counseling, advice, and litigation avoidance, but will litigate when appropriate and desired. Randi’s counseling ...