With the COVID-19 pandemic appearing to subside, talk has turned to employees in non-essential jobs getting back to workplaces. But that will be easier said than done, as employers must proceed with caution, according to some employment law experts.
Sara Jodka, a member of the Dickinson Wright law firm in Columbus, OH, says perhaps the No. 1 legal challenge for HR and employers will be managing the situation should employees not want to return for one reason or another.
For example, it’s been well-reported that some employees are earning more collecting unemployment in their states and would prefer staying on unemployment while it’s financially advantageous; other employees might fear contracting COVID-19 in the workplace.
Another hurdle for some employers will be navigating the patchwork of new laws relating to employees and COVID-19, including the employee headcount re-employment and salary requirements required for loan forgiveness within the Payroll Protection Program (PPP), offered to employers with fewer than 500 employees by the $1.9 trillion CARES Act.
Jodka says the expanded eligibility allowances under the Pandemic Unemployment Assistance (PUA) plans, also part of the CARES Act for purposes of federal unemployment, and the paid-leave requirements under the Families First Coronavirus Response Act, represent two more legal issues that could be problematic if not handled well.
“Employers also need to comply with return-to-work orders regarding social distancing, face coverings, employee testing and navigating the legal landmines associated with all of those things,” she says, adding in compliance with the Americans with Disabilities Act when testing employees or asking questions about symptoms, etc.
There also are other areas that will be affected by the pandemic, such as discrimination and the WARN Act (Worker Adjustment and Retraining Notification Act of 1988), which deals with notice of layoffs, or wrongful termination.
Regarding the WARN Act, Chicago-based Gregory Abrams, a partner with the Faegre Drinker law firm, says employers should pay particular attention to the fact that the states in which employers operate may have their own versions of the law with unique features, such as different employee thresholds for notice to apply.
“Additionally, employers doing layoffs in waves or successive periods need to be mindful that WARN liabilities may be triggered in this scenario,” he says.
When it comes to discrimination pitfalls, if employers are going to make distinctions as to who is permitted to return to workplaces and who is permitted to telework, or distinguish among employees for other reasons on the basis of creating a safe workplace, they should ensure such decisions have defensible, objectively verifiable bases, Abrams says.
“Regarding wrongful termination, employers should be prepared to demonstrate, if ever challenged, objective reasons for termination wholly unrelated to any complaint the individual raised in connection with his or her pandemic-related concerns or issues,” he says.
Jodka adds that retaliation claims are already an issue, as employees are being terminated for taking protected leave and for complaining about workplace conditions, which is typically protected conduct.
“Discrimination claims are also occurring as employees are suing claiming they were downsized for discriminatory reasons and that COVID-19 was used as an excuse to terminate them for illegal or otherwise protected reasons/characteristics,” she says.
Fears around potential litigation are common among HR leaders: According to a recent Littler survey, 70% of in-house counsel were concerned about potential lawsuits springing up after employees returned to workplaces. In particular, they worried about leave-of-absence issues, unsafe working conditions and workers’ compensation.
There is another scenario looming over the entire COVID-19 employment-law space, and that is whether or not employers could be held responsible if employees contract COVID-19 in the workplace. Republications, led by Senate Majority Leader Mitch McConnell, says any new financial legislation regarding COVID-19 relief must indemnify employers from litigation. Democrats disagree. And there seems to be no compromise on the agenda right now.
“I think blanket liability relief would further reduce workplace protections on employees,” Jodka says. “If employers have no fear about being sued, they may become more relaxed in terms of complying with social distance and other safeguards.”
She also doesn’t see what middle ground on the issue could possible look like.
“Would it be liability for some claims, but not others?” Jodka says. “I don’t see how that is possible, as all claims would be shoehorned into the liability ones.”