Coronavirus compliance with new federal regs is difficult as employers bring employees back to the workplace. While Congress battles over liability protections for firms, some states have passed laws granting immunity from coronavirus-related legal liability for some employers.
In June, Louisiana, North Carolina, Oklahoma, Utah and Wyoming enacted laws that grant essential businesses immunity. More states, including Alabama, Illinois, Louisiana and Wyoming, are considering laws to extend coverage to all businesses.
800+ lawsuits filed
More than 800 coronavirus-related lawsuits have been filed nationwide, according to Fisher Phillips’ lawsuit tracker.The majority of these suits (94%) allege unlawful termination after an employee contracted COVID-19 or needed to care for a quarantined loved one, says Bloomberg Law.
Steps employers can take
As schools return and firms reopen amidst the threat of a second wave of COVID-19, experts predict many more suits to be filed before Dec. 31, 2020, when the Families First Coronavirus Response Act (FFCRA) expires.
Here are the types of lawsuits and steps employers can take to protect their firm from liability:
1. Discrimination/retaliation: In a recent claim, a pregnant woman said she was furloughed due to the pandemic, but was replaced by a nonpregnant employee. In another case, an employee was forced to reveal a multiple sclerosis diagnosis to justify her accommodation request and was subsequently terminated.
Take all accommodation requests seriously. Workers who have serious medical conditions or are age 65 or older are entitled to ADA accommodations. These can include remote work, flexible schedules or additional time off.
2. Work from home/leave requests: Many COVID-19 leave lawsuits involve a worker who claims to be denied leave or a work-from-home accommodation despite having a legitimate need.
Follow the FFCRA. The federal law requires employers to provide up to two weeks of paid sick leave to employees experiencing COVID-19 symptoms. Employees also get two weeks of paid leave at two-thirds of their salary to care for a quarantined loved one or handle child care needs.
“Employers should not assume that the FFCRA doesn’t apply to them simply because they have fewer than 50 employees,” says Davis/Kuelthau attorney Laurie Meyer. The exception for small firms applies only to requests due to child care unavailability.
3. Unsafe working conditions: One recent claim involved an Illinois Walmart being sued by the family of an employee who died after contracting the virus.
Stay informed. It’s key that firms follow guidance and safety orders from federal, state and local governments.
In the absence of liability laws, employers can point to guidance from both the Centers for Disease Control and Prevention (tinyurl.com/CDCguide613) and OSHA (tinyurl.com/OSHA613) to “show their actions were reasonable,” says Foley & Lardner Attorney Patrick McMahon.
4. Wage and hour claims: Workers at the Hair Cuttery in New Jersey sued their employer, alleging a FLSA violation for withholding pay for work performed before the nationwide salon’s closure in March.
Other COVID-19-related lawsuits allege employees weren’t compensated for overtime or extra time necessitated by the pandemic before a shutdown.
Anticipate any FLSA responsibilities. These can include: ensuring non-exempt remote workers adequately report their time, compensation reductions haven’t resulted in minimum wage violations or exempt employee salaries haven’t been reduced below the overtime exemption threshold.