The coronavirus pandemic has created an unpredictable landscape for employers. As of right now states are in various stages of their phased reopening plans and many employers have either brought employees back to the physical workplace or are planning to do so.
Wherever you currently find yourself, it is critically important to meet with an employment attorney to identify potential hazards that might result in a lawsuit.
Allegations of discrimination are possibly the biggest trap. When the coronavirus first hit and businesses had to shut down, many employers were forced to implement furloughs and layoffs quickly. Not all employers necessarily took the time to properly analyze (or better yet, engage an attorney to analyze) who was being affected. Some of those personnel decisions may be having a disproportionate effect on workers of a particular race, ethnicity, gender or age. If this has happened in your workplace, you could be vulnerable to a “disparate impact” claim under federal or state anti-discrimination law. Similarly, if you have been lucky enough to avoid layoffs or furloughs in large numbers but expect to have to implement them in coming weeks, you’ll be setting yourself up for problems if you don’t do it right. Review your plan with an attorney ahead of time to make sure you can justify your personnel decisions on legitimate business grounds.
Wage-and-hour claims are another potential trap, particularly if you have had “non-exempt” (hourly or low-salaried workers) working from home during the pandemic. Work-at-home situations can lead to wage and hour claims because they lend themselves to blurred lines between company time and personal time, especially when workers are anxious about their job security. If you add in the lax recordkeeping that can occur during a chaotic time, your workers may end up with legitimate claims that you failed to pay overtime or minimum wage.
But non-exempt employees aren’t the only ones you need to worry about. Let’s say you’ve furloughed an exempt worker and she’s sitting at home not getting paid, but you are calling or emailing her so she can walk you through certain tasks that she would otherwise be handling. She now may be entitled to a full week’s salary for whatever time she spent helping you. It is also important to note that in many states, a wage law violation means you’ll have to cover not only any unpaid wages, but also the worker’s attorney fees and double (or even triple) their damages.
Worker safety is a third area of risk for employers. Penalties can be significant under state and federal workplace health and safety laws, some of which may even provide financial incentives for “whistleblowers” to report violations. Employees could also potentially bring lawsuits claiming they contracted COVID-19 when they went back to work because their employer failed to follow state and federal guidelines for social distancing or provision of masks and other personal protection equipment.
Realistically, these may be tough suits for an employee to win. After all, it’s difficult to prove where you contracted a virus and a court may also find that worker’s compensation is the sole available remedy. But litigation is disruptive and costly even when you prevail, so strict compliance with guidelines is still your best defense.
Yet another tricky issue is handling older workers and workers with preexisting conditions or who live with someone who is high-risk. Because of their heightened vulnerability to the coronavirus, such workers may be uncomfortable returning to the workplace. Before telling them, “come back or you’re fired,” you need to talk to your attorney and determine whether you’re obligated to accommodate them under state and federal law and, if so, how best to do that. You might need to allow them to continue to work at home or give them time off from work. (Family and medical leave laws could come into play here.)
Finally, as you take steps to keep your workplace safe, remember that while guidelines permit you to take workers’ temperatures and ask questions about symptoms, you must protect their privacy. If you fail to keep medical information confidential, you risk liability under HIPAA and state privacy laws.
These issues are just the beginning. More will arise as we move through the process. But it’s never too early to sit down with an attorney to review policies, procedures, laws and guidelines.