Employment Law Liabilities for Employers after COVID-19

The COVID-19 pandemic has exposed employers to an influx of novel labor law issues. Many employers have already seen an increase in related internal complaints or litigation. Below are five special labor law obligations that employers can face once the dust has settled from the pandemic.

Wage and hourly entitlements

The move to teleworking during the coronavirus pandemic has forced many employers to ditch traditional tracking mechanisms that are used to determine when employees are taking breaks and switching off. As a result, employers may be vulnerable to claims from workers who have not provided and / or paid for all required meal times, rest breaks, and overtime for remote and on-site workers. In order to proactively minimize potential wage and hourly claims, employers should ensure, as far as possible, that workers are adequately compensated for all hours worked. Additionally, employers can minimize minimum wage violations by complying with applicable federal, state, and local laws that require employers to reimburse employees for certain costs incurred for teleworking, such as: For cell phones, high speed internet or other equipment costs. In addition, employers should consider encouraging managers to use best supervisory practices in the teleworking environment, including clear expectations of employees, regular check-ins, timely resolution of issues, and other efforts to maintain clear communication.

Leave complaints

As the pandemic spread in March, Congress passed the Families First Coronavirus Response Act (FFCRA), which imposed the first federal mandate for paid sick leave. The law stipulates that employers with fewer than 500 employees must provide certain compensation to employees for various reasons related to COVID-19, including if they become sick or unable to work because they have to look after a child whose school they have closed . In the months following the peak of the pandemic, insured employers may encounter allegations that they have violated obligations under FMLA, FFCRA, and state or local laws by denying requested vacation, miscalculating employee pay, and requesting improper documentation or retaliation against an employee for vacation, etc.

To minimize the exposure to these pitfalls, employers should consider proactive measures to determine their potential obligations under relevant federal and state laws and, if necessary, to provide workers with protected paid vacation. In addition, employers should carefully consider the risk of personnel action that could potentially lead to acts of discrimination or retaliation from employees who requested or took vacation leave.

Safety at work

The Centers for Disease Control and OSHA have published general guidelines and safety recommendations for specific industries. OSHA has released updated enforcement guidelines on how to make work-related determinations regarding the COVID-19 records. All states and most local authorities have instructions on mandatory safety precautions.

Many employers, particularly major employers, have noted an increased number of complaints to OSHA or the OSHA state plan about safety related to COVID-19 in the workplace. In most cases, OSHA has used its informal approach to investigation, Rapid Response Investigation or RRI, which usually does not include an on-site investigation. Until a few weeks ago, OSHA took a hands-off approach to keeping records. However, recent guidelines have included the announcement of enforcement actions in this area. As per OSHA’s record keeping requirements, COVID-19 is a reportable disease and employers are at potential risk for failure to comply with record keeping / reporting requirements.

Employers are already facing a number of damages claims that workers have contracted COVID-19 in the workplace. Many states have enacted or are considering the scope of the Workers Compensation Act to increase the likelihood of compensation. When claims are not covered by employee compensation, employers can make negligent claims as the exclusivity of employee compensation may not act as an obstacle. Employers should consider consulting an in-house or external attorney to strategize best practices for adhering to the evolving recommended security measures and necessary strategic decisions regarding the interaction of these issues.

Discrimination fees

As employers across the country ponder return to work protocols, many workers may not be ready to return, especially workers with pre-existing conditions who may be at risk if they return to work and are exposed to COVID-19. Employers can file lawsuits under the American with Disabilities Act (ADA) by requiring employees to report or unfairly refuse a request for reasonable accommodation to help them do their jobs safely. Additionally, the widespread teleworking regimes that many companies successfully migrated to during the pandemic may make it difficult for employers to refuse to allow disabled workers to continue working from home as a reasonable accommodation. Employers should consider consulting an in-house or external attorney to assess their ADA compliance in light of recent guidance regarding ADA, Rehabilitation Act, other EEO laws, and COVID-19. In addition, employers should follow the required protocols set out in the EEOC’s guidance on COVID-19 workers at risk.

The EEOC guidelines confirm that employers have the right to conduct COVID-19 tests and take other safety measures before allowing employees to enter the workplace. However, employers must take into account that discrimination laws allow workers to contest measures that have different effects on workers of a particular national origin, age, or other protected class, even if the employer has not intentionally discriminated. For example, if a company subjects employees of Asian descent or certain population groups who are disproportionately infected with COVID-19 to higher screening standards compared to others due to their protected characteristics.

To minimize potential discrimination claims, human resource interventions should be conducted for legitimate, non-discriminatory business reasons.

WARN Act violations

In the months following the COVID-19 outbreak, COVID-19-related business losses had placed many employers in a difficult position to carry out sudden layoffs and other job cuts. Unfortunately, efforts to downsize rapidly likely made it difficult for employers to issue mandatory dismissal to affected workers, which could lead to lawsuits claiming employers were subject to the obligations under the Federal Worker Adjustment Retraining Notification Act of 1988, 29 USC § 2100 ff. Not complied with. (“WARN”) and its government counterparts (so-called “Mini-WARN” laws).

WARN requires employers with 100 or more employees to give at least 60 days’ notice before a certain number of employees are closed or laid off. State “mini-WARN” laws are often more comprehensive in their reporting. In general, employers who fail to give notice in a timely manner may be required to give workers a reimbursement plus penalties. The “unforeseen business circumstances” exception in Federal WARN and most analogous state laws can excuse strict compliance with reporting requirements. However, as of the date of this article, the federal government has not yet provided guidance on how to apply this exemption to COVID. 19. While some states have explicitly stated in an executive order that the current pandemic is an unforeseen business circumstance under federal law, it is unknown how the courts will weigh the state executive orders. Given the ongoing uncertainty about the applicability of certain exemptions, it is advisable for employers to take the time now to analyze the applicability of this exemption rather than making assumptions about it.

Final thoughts

The COVID-19 pandemic and the associated legislative and health policy measures will continue to have an impact on business operations for the foreseeable future. Employers should take care to reduce the risk of potential exposure to work requests by reviewing any new laws, regulations and government guidelines in place, revising company policies as necessary, and continuing to anticipate potential claims as the public health crisis unfolds.

Copyright © 2020, Hunton Andrews Kurth LLP. All rights reserved.National Law Review, Volume X, Number 174

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