As COVID-19 continues to spread throughout the U.S., there has been a massive upheaval of the American workplace. Employers have found themselves drafting and implementing policies and procedures addressing a wide array of issues including remote work, layoffs, furloughs, pay cuts, workplace conditions, etc. And not surprisingly, the uncertainty has left employers at an increased risk of exposure to employment-related claims.

Protecting employees properly is the key to protecting a business. If you are an employer, read up on these most common COVID-19 claims that may lead to employment-related litigation. Take the appropriate precautions to avoid any potential legal drama.

**We strongly recommend employers seek legal counsel when faced with any of the claims discussed in this article. **

Workplace Health and Safety

There have already been numerous safety violation claims filed under the Occupational Safety and Health Act (OSHA) and state equivalents. These safety violations typically allege that an unsafe workplace has caused sickness and/or death due to COVID-19. Alternatively, some claimed an employer failed to take appropriate measures to provide hand-washing stations, sanitizers, or masks and adequate protective gear on location to reduce COVID-19 exposure within the workplace. Other claims alleged that employees have been unable to practice social distancing due to the nature of their jobs.

Leave Claims (FMLA and FFCRA)

In addition to traditional paid and sick leave, COVID-19 spurred the passing of the Families First Coronavirus Response Act (FFCRA.) This includes the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act. The FFCRA requires employers with 500 or fewer employees to provide expanded paid family and medical leave, and emergency paid sick leave.

The FFCRA incorporates the existing remedies and provisions of the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA). This means an employee wrongfully denied expanded leave or not paid during their leave will have a course of action to recover damages (lost wages, salary, benefits and other compensation) or actual monetary losses resulting from the denial of leave (e.g., the costs of child care), with interest. Likewise, employers that do not comply with the Expanded Paid Sick Leave Act will be liable to resolve obligations under the FLSA.

Given the extensive exposure, you as an employer should consider legal counsel to update and implement leave-related policies. It may also be wise to train your managers and supervisors on updates to the policies and laws. They will be the ones on the front lines when dealing with leave-related issues.

Wage and Hour Claims

With employees being asked to work from home, and employers restructuring their workforce to fit their current needs, it’s vital to remember that this reshuffling can give rise to claims related to salary, compensation, and a reduction in hours worked. Altering work arrangements and compensation structure may be necessary to keep some organizations afloat. But these changes may inadvertently alter the classification status of your workers, leading directly to an FLSA claim.

Discrimination Claims

Numerous federal and state laws protect employees from discrimination based on protected class characteristics. Laid-off or furloughed employees may file claims under federal and state anti-discrimination laws, challenging the reason they were selected for an adverse employment action. As an employer, you should always remain objective when deciding which employees to lay off or furlough. Always retain records of the criteria used to come to that decision.

A claim might also be brought to an employer due to their failure to reasonably accommodate employees with a genuine disability related to COVID-19. Such claims can even be based on a denial of a request to allow an employee to work from home.

Retaliation Claims

Most state and federal laws contain provisions that make it unlawful for employers to retaliate against employees who exercise their protected legal rights or oppose unlawful employer actions. For instance, there have already been numerous claims that allege retaliation for objecting to unsafe working conditions and exposure to individuals with COVID-19 symptoms in the workplace. Other retaliation claims may arise out of an employee complaint that the employer wrongfully denied a request for leave.

The most important practice in shielding your business from a retaliation claim is documentation. Extensively documenting your reasoning behind your employment decisions can be the difference between a successful retaliation defense and a costly judgment.

Wrongful Termination Claims

With the increase in employee furloughs and layoffs has been an increase in wrongful termination claims. Wrongful termination claims can arise out of a multitude of COVID-19-related issues. For example, an employee claimed they were terminated for a complaint regarding a lack of personal protective equipment. In another case, the claim involved retaliation. The employee claimed their termination resulted from a complaint about co-workers with COVID-19 symptoms.

To mitigate the potential for a wrongful termination claim, you should proceed carefully upon receiving employee complaints. If you do receive complaints, make sure to keep meticulous records. Document the investigation process and the ultimate reasoning behind the termination.

Disclosure of Confidential Information Claims

The CDC and state/local health authorities issued precautions to prevent community spreading of COVID-19. This allows employers to measure the body temperatures of their employees. However, this newly expanded testing capability exposes the employer to a plethora of privacy-related issues.

In order to maintain the privacy of COVID-19-related medical documents, the ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file. An employer may store all medical information related to COVID-19 in existing medical files including an employee’s statement that they have the disease or suspect they have the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.

Conclusion

These are examples of the most common types of claims that may arise as a result of COVID-19. It is imperative that you as an employer are aware of these potential issues and proceed accordingly. Moving forward, all employers should consider the following:

  • Develop a return-to-work plan around federal and local safety guidance on personal protective equipment, workspace hygiene, social distancing measures, etc.
  • Consult with legal counsel when implementing (or updating) policies and procedures to ensure compliance. Secure counsel’s presence when undergoing recall, rehire, and job offers, as this stage is the epicenter for employment-related claims.
  • Implement those policies and procedures in a fair and equal manner.
  • Ensure proper communication to all employees, particularly the line managers who will be responsible for implementation.
  • Maintain the confidentiality of all medical-related information provided by employees in compliance with federal and state guidance.
  • Train managers and supervisors on new policies and procedures drafted in the wake of COVID-19.
  • Regularly monitor new federal, state and local guidance, as well as legislative enactments.

Contact Camargo Insurance today for more risk management guidance.

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