Employers must provide employees a safe place to work under the Occupational Safety and Health Act’s “General Duty Clause.” This catchall safety provision applies to “recognized hazards.” When OSHA addresses a pandemic, it reminds employers of their general duty to protect employees from airborne infectious diseases. Given the Act’s remedial purpose “is prophylactic in nature,” Whirlpool Corp. v. Marshall, 445 U.S. 1, 12 (1980), developing, maintaining, and implementing workplace plans to reduce worker exposure is crucial to mitigate the risk of citation.
But what about those that are already exposed despite adequate workplace measures? Many individuals are asymptomatic or can carry (and spread) COVID-19 for up to two weeks without illness. Employers should assume—and plan for the unfortunate reality—that most employees will suffer a consequence because of COVID-19.
Recent gubernatorial decisions have forced thousands of “nonessential” businesses to shut down and send employees home, threatening the economy. While other businesses providing “essential services,” such as healthcare providers, grocery stores, and restaurants, remain open, they likewise face myriad challenges. As the coronavirus pandemic escalates, so does uncertainty and risk. Adding insult to injury, litigation tends to increase in times of crisis. The coronavirus has already disrupted the workplace; it will undoubtedly continue to do so, implicating numerous employment laws that could give rise to unprecedented legal claims.
Claims arising under equal employment opportunity laws
A pandemic like COVID-19 implicates anti-discrimination statutes, including the Americans with Disabilities Act (ADA) and parallel state laws, that regulate disability-related inquiries and medical examinations, prohibit discrimination, and require reasonable accommodations for known limitations of disabled applicants and employees. The Equal Employment Opportunity Commission’s guidance suggests employers have latitude with certain risk-reduction measures that could otherwise violate the ADA, including asking employees about symptoms, taking employees’ temperatures, and sending symptomatic employees home. But it remains an open question whether COVID-19 could give rise to claims for disability discrimination or failing to provide accommodations for the disease.
The ADA defines a disability as including an impairment that substantially limits one or more major life activities. Though COVID-19 is a temporary illness that is unlikely to constitute a “disability,” longer-term consequences from it could implicate statutorily recognized major life activities, including breathing, speaking, communicating, and working. Employers must provide reasonable accommodation to qualified individuals with a disability unless doing so would cause undue hardship or present a direct threat in the workplace. As the CDC and other public health agencies learn more about the coronavirus, assessments that it meets the “direct threat” standard could change. A categorical approach to COVID-19 would ignore an employer’s duty to engage in the interactive process and assess an individual’s ability to safely perform the essential functions of his or her job.
Employers must also be conscientious of the potential for stigma and discrimination in the workplace. With the first known case of COVID-19 originating in Wuhan, China, and related geographic labels for the disease, the CDC reminds employers to avoid making determinations of risk “based on race or country of origin.” Asian-Americans have reported experiencing fear to grocery shop, travel alone, and let their children outside to play. Misconceptions about the coronavirus could lead to xenophobia in the workplace. Title VII of the Civil Rights Act of 1964 and similar state statutes obligate employers to protect employees from workplace discrimination or harassment based on their race, national origin, and other protected characteristics.
National origin discrimination includes treating an individual differently because of his or her or an ancestor’s place of origin or because the individual has physical, cultural, or linguistic characteristics of a national origin group. In reacting to COVID-19, employers should focus on applying policies fairly, uniformly, and consistently; ensure perceptions about the disease’s origin do not influence employment decisions; and promptly address any concerns of mistreatment by employees of Asian descent. Remedies for discrimination, harassment, and retaliation include back pay, reinstatement or front pay, compensatory damages, punitive damages, and attorneys’ fees; and, such claims are costly to defend.
Claims for interfering with or denying leave or sick time
As COVID-19 spreads, and workplace and school closures continue, requests for paid time off will inevitably increase. Employers must consider already complex paid sick leave laws. Many state and local laws require paid sick leave that covers preventative care, such as a quarantine to avoid exposure to the coronavirus. In addition, emergency legislation enacted in response to COVID-19 adds another layer of complexity to the patchwork of state and local sick leave laws. The new Families First Coronavirus Response Act (FFCRA) requires that employers with fewer than 500 employees make available 80 hours of paid sick leave for full-time employees or a prorated amount for part-time employees for COVID-related purposes, including to isolate per a federal, state, or local order and to care for a child whose school or childcare provider closed.
Beyond sick leave, an employee may qualify for additional leave time. Under the Family and Medical Leave Act (FMLA) and comparable state laws, covered employers (i.e., employers with 50 or more employees) must provide employees job-protected, unpaid leave (up to 12 weeks) for specified family and medical reasons. According to the Department of Labor, leave to avoid exposure does not trigger the FMLA, but complications from COVID-19 could create a “serious health condition” that does. And, the FFCRA (specifically, the Emergency Family and Medical Leave Expansion Act) expands the FMLA, providing up to 12 weeks of job-protected leave (10 of which are paid) for a “qualifying need”—i.e., for an employee who cannot work or telework because he or she needs to care for a minor child whose school or place of care closed or is unavailable due to the coronavirus.
The denial of or interference with an employee’s right to leave could give rise to claims for discrimination or retaliation, violation of wage and hour laws, and significant fines for noncompliance. As an example, some state laws presume unlawful retaliation if an employee experiences an adverse employment action within a specified timeframe of an employee invoking his or her rights under a sick leave law, and the FFCRA makes an employer liable for unpaid minimum wages and an equal amount of liquidated damages, among other penalties, for violations.
Employers should closely track employees’ entitlement to leave under the many laws that cover temporary paid family and sick leave for employees affected by COVID-19. Employers should also anticipate further legislation, with several states already introducing or enacting emergency legislation to protect employees.
Potential wage and hour violations stemming from remote work and the economic impact of COVID-19
Recent shelter-in-place orders have forced millions of employees to work at home. Remote work creates complex wage and hour issues, including:
- The ability to adequately monitor and track time to ensure nonexempt, hourly employees are paid for all hours worked at the appropriate rate. Beyond tracking time for pay, employers must also maintain records concerning employees’ working time under the FLSA and similar state laws.
- Reimbursement of necessary business expenses employees may incur to carry out job duties at home, where doing so may require the use of personal printers, phones, and office supplies. Under federal law, an employer cannot require a non-exempt employee to pay for business expenses if doing so reduces earnings below minimum wage or overtime compensation, and some states impose additional requirements for reimbursing business expenses.
- Ensuring that employees continue to take meal and rest periods at the appropriate time, particularly where employees may alter schedules while juggling at-home responsibilities.
COVID-19 also presents a wide range of workforce management issues such as reductions in staff, hours, or pay, which further implicate wage and hour laws, including those governing deductions from an exempt employees’ salary; salary threshold requirements for exempt classification; advance notice of changes to hours, schedules, or layoffs; and timely pay upon termination. As an example, employers may consider reducing the work schedule and pay of exempt employees as an alternative to layoffs. Doing so could affect an exempt employee’s classification status. The analysis may differ under federal versus state law, some of which may also require advance notice. Some states and local governments also have predictive scheduling laws that require advance notice of scheduled shifts and under such laws changes could require compensation.
Wage and hour violations result in significant penalties, and often lead to class action or representative litigation. Employers should establish protocols for proper oversight to comply with federal and state wage law.
Potential violations of a Collective Bargaining Agreement (CBA)
Unionized employers must consider legal obligations under a collective bargaining agreement or other enforceable contract that could expand an employees’ rights and implicate a duty to bargain in good faith with or provide information to a union under the National Labor Relations Act. CBAs often include provisions that address scheduling, meal and rest breaks, work assignments, layoffs, and other terms and conditions of employment. Employers should consider how a contemplated change in response to COVID-19 may impact a CBA.
CBAs may also underscore an employer’s obligation to provide a safe work environment. Although “shelter-in-place” orders are a recent response to COVID-19, employees or a union may consider measures to prevent exposure inadequate or untimely under a CBA, as a labor organization recently alleged in a lawsuit filed against the State of Alaska. See Alaska State Employees Association, Local 52 v. State of Alaska, Case No. 3AN-20-5652 (Alaska Super. Ct. March 24, 2020) (alleging the State of Alaska failed to provide a safe work environment for state employees in violation of state law and the CBA by not taking adequate measures to address COVID-19).
The interplay of federal, state, and local laws is already complex. New emergency legislation and contractual obligations add yet another layer of complexity. Employers must consider several factors and unfortunately face several challenges in responding to this ongoing national emergency. Taking care in making decisions and staying informed about potential pitfalls will help avoid or mitigate against unintended legal claims.