July 29, 2020 Feature

How to Avoid Getting Sued in a COVID-19 World—Top Claims Facing Employers as Employees Return to Work

By Nina Maja Bergmar
Employers must develop a plan to address both the legal and practical considerations for safely returning employees to work.

Employers must develop a plan to address both the legal and practical considerations for safely returning employees to work.

miodrag ignjatovic/E+ | Getty Images

As states are opening back up, COVID-19 continues to wreak havoc on workplaces. Employers are charged with complying with new federal, state, and local laws aimed at curbing the spread of the disease while also having to balance employee privacy and discrimination concerns. Unsurprisingly, this balancing act has led to an uptick in specific employment claims being filed against employers. This article highlights some of those claims and details steps employers can take to protect themselves against liability.

OSHA Retaliation Claims

Perhaps the most significant increase has been in retaliation claims. The Occupational Safety and Health Agency’s (OSHA) Whistleblower Protection Program enforces the whistleblower provisions of 22 federal statutes protecting employees who raise or report concerns about hazards or violations of various workplace safety and health laws. In short, the whistleblower provisions prohibit employers from retaliating against employees who engage in protected activities, such as filing a workplace safety or health complaint, reporting a concern about workplace safety to the employer, or refusing to conduct tasks that violate the law.

Even though OSHA has yet to issue any mandatory safety measures that employers must take to curb the spread of COVID-19, it has been inundated with employee complaints related to employers’ response to COVID-19 and insufficient safety precautions. Countless more employees have raised concerns to employers directly or even refused to return to work because of perceived safety threats.

These employees are now protected from retaliation, and, inevitably, some of them will be subject to adverse actions in the workplace. It is foreseeable that at least a portion of those employees will perceive the adverse effect as related to their protected conduct. Employment attorneys have already seen a significant increase in OSHA retaliation claims, and the number will likely only go up as more employees return to work.

Even where the underlying complaint lacks merit, an employer who retaliates against an employee for reporting or raising concern about workplace safety could face significant liability, including back pay, other compensatory damages, and punitive damages.

Employers should, therefore, be particularly vigilant about ensuring that any adverse actions taken against employees are based on legitimate, non-retaliatory factors and that such factors are thoroughly documented in the employee’s personnel file. Employers should also be mindful that prohibited adverse actions are not limited to terminations, but can include demotions, failure to promote, transfers, write-ups, threats, and any other acts that would deter a reasonable employee from raising concerns about safety and health risks in the workplace.

Discrimination Claims

Employers are also likely to see an uptick in discrimination claims under Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act of 1990 (ADA), and the Age Discrimination in Employment Act of 1967 (ADEA) related to their handling of the COVID-19 pandemic.

Employers are particularly vulnerable to discrimination claims related to layoffs and furloughs. When deciding whom to lay off, furlough, or bring back to work, employers are prohibited from basing their decision on protected characteristics such as age, disability, national origin, or disability. This is true even if the employer’s intent is to protect particularly vulnerable employees or to limit the spread of COVID-19. Thus, even employers acting in good faith to protect older workers or workers with pre-existing health conditions from COVID-19 could face significant liability for their disparate treatment of employees.

Administration of COVID-19 screenings is another potential minefield for employers. If an employer administers screenings inconsistently or only requires certain groups of employees—such as older workers, workers with pre-existing health conditions, or workers of a certain ethnicity—to undergo screenings, then the employer may be found liable for subjecting its employees to disparate treatment based on a protected characteristic.

An employer who violates the federal discrimination statutes—even if with good intentions—could be liable for compensatory and punitive damages and attorney fees. To avoid liability, companies should ensure that supervisors, managers, and anyone involved in COVID-19 screenings are trained on applicable employment discrimination laws and kept up to date with the ever-changing guidance from the Equal Employment Opportunity Commission (EEOC) on what employers may and may not do to address COVID-19 concerns in the workplace.

Failure to Comply with Leave Laws

Finally, a significant source of liability already facing many employers is the failure to provide employee leave mandated by the Families First Coronavirus Relief Act (FFCRA). The FCCRA added two types of leave available to employees affected by COVID-19: paid sick leave under the Paid Sick Leave Act (PSLA) and expanded family medical leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA). In short, covered employers must provide two weeks (up to 80 hours) of paid sick leave to employees who are unable to work for certain qualifying reasons related to COVID-19. They must also provide expanded FMLA leave to employees who are unable to work because a child’s childcare is closed as a result of COVID-19. The first ten days of the expanded FMLA leave is unpaid (though paid sick leave can be used during that time), and the remaining ten weeks are paid at 2/3 of the employee’s regular rate.

Perhaps the most confusing part about the new leave laws is their interaction with other types of leave. Employers are bound to make mistakes when determining how to classify an employee’s absence from work and thereby fail to comply with the varying requirements governing different types of leave. For example, the type of documentation that an employer may require from an employee to substantiate a leave request differs between the FFCRA and the FMLA. The FFCRA intentionally made it easier for employees to take leave by prohibiting employers from requiring certain documentation that may otherwise be requested under the FMLA. And if the employee is concurrently taking another type of paid leave, any documentation requirements relevant to that leave still apply.

Employers are also likely to run afoul of the FFCRA when administering its own paid leave policies. Notably, employers are prohibited from using paid sick leave under the PSLA to satisfy paid leave entitlements that an employee may have under the employer’s own paid leave policy. Thus, an employer may not require that an employee use PSLA leave instead of or concurrently with employer-provided paid leave. To make matters even more confusing, the converse is true under the FMLA, which specifically allows employers to require employer-provided paid leave to run concurrently with paid expanded family and medical leave.

Failure to comply with the FFCRA’s paid leave requirements can be costly. Employers who fail to compensate employees for paid leave are subject to the penalties outlined in Sections 16 and 17 (29 U.S.C. § 216-217) of the Fair Labor Standard Act, including, but not limited to, payment of lost wages and an additional equal amount as liquidated damages, as well as attorney fees.

To avoid exposure, employers should carefully examine each employee’s request for leave to determine how it should be classified, review the specific employer obligations applicable to the relevant leave, and determine if concurrent use of other leave is appropriate or permissible.

Conclusion

As the above discussion shows, employers are facing a minefield of potential litigation when welcoming employees back to work. Now more than never, employers should take the time to review and update existing employee policies and train managers and supervisors on applicable employment laws.

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Nina Maja Bergmar

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Ms. Bergmar is an associate at Burr & Forman LLP who defends clients against employment claims related to discrimination, wage and hour compliance, and protected leave, as well as related tort and contract claims.