Employers everywhere are grappling with the many new laws enacted because of the coronavirus pandemic.
Specifically, there are federal statutes on COVID-related leave, U.S. Centers for Disease Control and Prevention (CDC) and state guidance on proper safety precautions in the workplace—and for Delaware employers in particular, there are 20 new Executive Orders (and counting) signed by Governor John Carney, including the recent phased reopening of businesses.
Many have had to make difficult decisions in response to the economic fallout, including layoffs, furloughs, and reductions in employee hours or compensation. On top of everything else, you can expect a new wave of litigation to follow the decisions: wrongful termination lawsuits based on age, disability, or whistleblowing, along with health and safety allegations including wrongful death.
Below are just a few of the claims you can anticipate and key considerations to limit exposure.
Age and Disability Claims
Individuals with certain underlying conditions and/or over the age of 60 are especially vulnerable to COVID-19. The Equal Employment Opportunity Commission (EEOC) has made clear, however, an employer’s unilateral decision to place an employee on leave, based only on the individual’s age or health, is likely to violate the Age Discrimination in Employment Act (ADEA) or the Americans with Disabilities Act (ADA)—even when it’s done with the employee’s best interests in mind.
Potential landmines. Because of the pandemic and related screening measures, you may become aware of employee health issues about which you wouldn’t otherwise have known. Employees may later claim the discipline or discharge you based on legitimate reasons was instead caused by their medical condition, in violation of the ADA.
In addition, if employees are already out of the workplace on extended leave for COVID-related reasons, they might be more likely to land in the first round of layoffs and may claim their terminations were because of age or disability.
Employers now rehiring laid-off employees face even more landmines. Some have suggested “restarting” the economy by reinstating younger, low-risk workers before high-risk individuals. If you rehire younger workers while suggesting older workers should stay home, you could run headfirst into an age discrimination claim.
Similarly, recalling laid-off employees with an eye toward avoiding leave entitlements (e.g., avoiding parents of young children who may be entitled to expanded Family and Medical Leave Act (FMLA) leave) can land you in hot water under the Delaware Discrimination in Employment Act, for example, which prohibits discrimination on the basis of family care obligations.
Best practices. To avoid and defend against age and disability claims, treat any health information confidentially and share it only with those who have a legitimate need to know. Ensure any termination decisions are based on performance and well-supported by documentation, and carefully consider the impact of any layoff or rehire decisions on those in a protected class, such as older employees or those with disabilities.
Be as flexible as possible in accommodating workers who may be particularly vulnerable to the virus but let them drive the specific discussions. If you reach out to staff about accommodations for returning to the workplace, the best practice is to send a general notice to all employees with information about whom to contact regarding any accommodations (including state and federal leave entitlements) they may need. Be aware, though, age alone doesn’t require special accommodation under the ADA.
Health and Safety Violations
In addition to discrimination claims, we are already seeing a host of allegations related to employers’ failure to implement adequate health and safety measures for those employees who must be in the workplace.
Potential landmines. Failure to follow basic health and safety requirements in the present will virtually guarantee future claims for work-related injuries ranging from workers’ compensation to wrongful death if an employee suffers the worst outcome.
Although businesses are actively lobbying state and federal legislators for immunity related to COVID-19 exposure in the workplace, the pleas have yet to yield any action. You shouldn’t rely on future immunity to protect your business in the present.
Best practices. In addressing employee safety, start with the most recent guidance from the CDC and your state’s department of health—for employers in my state of Delaware, check out the Delaware Division of Public Health (DPH) and the governor’s Executive Orders. The resources lay out a series of steps you should take:
- Maximizing remote work opportunities;
- Providing cloth masks to those who cannot work in isolation; and
- Arranging for health screenings to ensure symptomatic employees and members of the public don’t enter the workplace.
Paid Leave Abuse
Employers should view paid leave through a positive, nonpunitive lens.
Potential landmines. Many businesses are concerned paid leave, implemented in accordance with the Families First Coronavirus Response Act (FFCRA), will incentivize abuse by employees who see it as an easy way to get out of work. But the reality is that the leave protects your workforce, and employees should be encouraged to use it when applicable.
Employees who don’t have access to paid leave are more likely to come to work sick and infect coworkers, leading to a much larger impact on business continuity. Anecdotal stories of employees working while sick to avoid losing income are myriad and demonstrate the FFCRA’s vital role in reopening your business.
Best practices. Frame leave requests in a positive light and create a corporate culture that encourages individuals to take care of their own health so all members of the workforce are safe.
Whistleblower Claims
Finally, you should be attentive to the threat of whistleblower claims.
Potential landmines. Many employees are coming forward and publicly accusing businesses of failing to provide adequate personal protective equipment (PPE) and related precautions designed to prevent the spread of disease. Disciplining an individual for those kinds of complaints, even when the employer feels the allegations are unfounded, is extremely risky.
Best practices. Remember, an employee’s good-faith belief there has been a violation of required health and safety practices is often enough to sustain a whistleblower claim. The employee doesn’t ultimately have to prove he was right to prevail.
If you must discipline an employee who has made a recent complaint about workplace safety, be sure it’s supported by thorough documentation and attempt to identify similarly situated individuals who were disciplined for the same conduct. That way, you can guard against allegations anyone was targeted for whistleblowing activities.
Bottom Line for Employers
We are living through unprecedented times, and the impacts are impossible to fully predict. But you should prepare for the coming wave of litigation and act deliberately to ensure you’re implementing the best practices.
Don’t let a pervasive sense of panic push your business to take rash action. When in doubt, the safest course is often to take a deep breath and give more careful thought to how your actions will be viewed when we’ve returned to a greater sense of normalcy.
Adria B. Martinelli and Lauren E.M. Russell are attorneys with Young Conaway Stargatt & Taylor, LLP, in Wilmington, Delaware. You can reach them at amartinelli@ycst.com and lrussell@ycst.com.